[1] The method to determine whether the infringement of the right of reproduction or the right of production of derivative works under the Copyright Act is an element for establishing the right of reproduction or the right of production of derivative works

[2] In a case where Gap filed a claim against Eul et al. for the prohibition of copyright infringement by asserting that the design of Eul et al., such as Eul et al., was prepared in accordance with Gap's Schedule "," the case affirming the judgment below holding that Eul et al.'s design cannot be deemed to have been created in accordance with Gap's Schedule

[1] Article 2 subparag. 1 and Articles 2 subparag. 22, 5(1), 16, 22, 123, and 125 of the Copyright Act / [2] Articles 2 subparag. 1 and 22, 5(1), 16, 22, 123, and 125 of the Copyright Act

[1] Supreme Court Decision 9Da10813 decided Oct. 24, 2000 (Gong2000Ha, 2381) Supreme Court Decision 2005Da44138 decided Mar. 29, 2007 (Gong2007Sang, 605) Supreme Court Decision 2005Da35707 decided Dec. 13, 2007 (Gong2008Sang, 1)

Plaintiff (Law Firm Southern, Attorneys Lee Dong-ho et al., Counsel for the plaintiff-appellant)

Za Automobile Co., Ltd. and two others (Law Firm Dao, Attorneys Oin-type et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 201Na56509 decided May 17, 2012

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

1. In order to establish an infringement of the right of reproduction or the right of production of derivative works under the Copyright Act, it should be recognized that a work is produced based on an existing work claimed as an infringement of the right of reproduction or the right of production of derivative works (see, e.g., Supreme Court Decisions 9Da10813, Oct. 24, 200; 2005Da35707, Dec. 13, 2007). Accordingly, the relationship can be presumed to have been recognized where access to an existing work, and the similarity between the subject work and the existing work is recognized (see, e.g., Supreme Court Decision 2005Da35707, Dec. 13, 207). In particular, where it is recognized that there is a substantial similarity between the subject work and the existing work and the result, such circumstance can be presumed according to the Copyright Act. In addition, whether there is a substantial similarity between the two works or not, and whether it is separate from the expression protected by the Copyright Act (see, 20074.

Plaintiff Skba

A person shall be appointed.

Defendants’ Design

A person shall be appointed.

2. The lower court determined that the Defendants’ design, etc. cannot be deemed as having been made in accordance with the Plaintiff’s Schedule on the ground that the Defendants’ design, etc. submitted by the Plaintiff was insufficient to recognize a significant similarity between the Plaintiff’s design and the Defendants, on the ground that, in light of the following: (a) the protruding level of protruding part is relatively low and there is insufficient time to place a door between them; (b) the central part is embling without a divided space; and (c) the upper part is forming a direct line; and (d) the evidence submitted by the Plaintiff is insufficient to recognize a possibility of access to the Plaintiff’s Schedule.

In light of the above legal principles and records, the above judgment of the court below is just, and contrary to the allegations in the grounds of appeal, there were no errors in the misapprehension of legal principles as to relation or in violation of logical and empirical rules.

3. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Chang-soo (Presiding Justice)