Applicant (Attorney Seo-dilution et al., Counsel for the plaintiff-appellant)

Respondent 1 and one other

March 16, 2005

Seoul Central District Court Order 2004Kahap393 dated April 2, 2004

1. The decision of the first instance shall be revoked;

2. Subject to the condition that the Claimant deposits 30,000,000 won for the Respondent or submits the payment guarantee entrustment contract document containing the above amount as the insured amount:

A. The respondent may not produce, distribute or sell books listed in the separate sheet No. 2 unless the elements listed in the separate sheet No. 1 through No. 11, 16 through 21, 23 through 39, 41, 43, and 44 are deleted.

B. The respondent shall set aside the possession of the parts as described in Section 1 to Section 11, Section 16 to Section 21, Section 23 to 39, Section 41, Section 43 and Section 44 of the above book’s production film, finished product and semi-finished product, and deliver them to the enforcement officer entrusted by the claimant.

(c) The enforcement officer shall publicly notify the purport of each of the above orders in an appropriate manner.

3. The applicant's primary claim and the remainder of the preliminary claim are dismissed;

4. The total cost of the lawsuit shall be borne by the respondent.

The decision of the court of first instance shall be revoked. The respondent shall not produce, distribute and sell the books listed in the separate sheet No. 2 (hereinafter referred to as “the books listed in the separate sheet No. 2”). The respondent shall refrain from producing, distributing and selling the books listed in the separate sheet No. 2 (hereinafter referred to as “the books of this case. The respondent shall release possession of the production films, finished products, and semi-finished products of the instant book, and deliver them to the execution officer entrusted by the applicant. The execution officer shall disclose the purport of each of the above orders in an appropriate manner. The execution officer shall cancel the decision of the court of first instance. The respondent shall not produce, distribute and sell the books of this case without eliminating the parts listed in the separate sheet. The respondent shall take possession of the parts listed in the separate sheet No. 2 list, finished products, and semi-finished products, and deliver them to the execution officer entrusted by the applicant. The execution officer shall give public notice of the purport of each order in an appropriate manner

1. The parties' assertion

The applicant has written the copyrighted works in the attached list 1 (hereinafter “the copyrighted works of this case”), such as the color theory, the selection of an individual color and cremation, the PCS (Personal Color Symmmmmon), the books, website notices, advisers and seminars data, and the copyrighted works as shown in the attached list 1 (hereinafter “the copyrighted works of this case”), and the respondent 1 made the copyrighted works of this case by citing the contents of the copyrighted works of this case without permission by referring them to the copyrighted works of this case and publishing them by 2 respondent who is the representative of the international publication, thereby infringing on the applicant’s copyright, upon the application of this case.

As to this, the respondent, first, written by the respondent 1 and published all the contents common to the work of this case in the book of this case published by the respondent 2, which are employed by the respondent 1 at the time when the respondent 1 was employed by the applicant and published as if the applicant was his own work, which shall not be deemed as a work of the above respondent or a joint work of the applicant and the above respondent. Second, even if the work of this case is the applicant's work, it shall not be deemed as copyright only for the applicant because the basic contents of the personal character theory published in the first published book are included, and the expressions expressed in the book of this case written by the above respondent 1 were derived from the expression of the above preceding book. In comparison with this part, the work of this case and the book of this case shall not be deemed as infringement of the work of this case since the actual identity is not recognized.

2. Determination

A. The copyright holder of the instant work

A person who had been widely known as the author's name or the name of the Respondent No. 1, 2, 4, 6 through 14, 11-1, 12, 12, 13, 13-1, 20, 9-2, 9-1, 9-2, 9-1, 9-1, 9-2, 9-1, 9-2, 9-1, 9-1, 9-2, 9-1, 9-2, 9-1, 9-1, 9-2, 9-1, 9-1, 9-2, 9-1, 9-2, 9-1, 9-2, 9-3, 9-1, 9-1, 9-2, 9-3, 9-1, 9-3, 9-2, and 9-1, 19-3, and 9-3, respectively.

If so, the copyright holder of the instant work is the applicant.

B. Whether the work of this case is creative

A work protected under the Copyright Act shall be “a creative production belonging to the scope of literary, scientific or artistic works” (Article 2 subparag. 1 of the Copyright Act). The term “a creative production” refers to the author’s own work that is not a pipe of his own work and that there is at least a minimum creativity to the extent of worth being protected under the Copyright Act. From this point of view, the author’s work of this case shall be examined as to the work of this case, and the author’s work of this case shall be deemed to have written the work of this case by means of various social activities, including personal diagnostic techniques, in full view of the overall purport of arguments in the statement of the materials and evidence No. 36 through No. 40 of the A. 36 through No. 40 of the A. 1, the author’s work of this case, as the respondent asserts, and even if there is a specific content of the work of this case, the work of this case shall not be deemed to have been protected under the Copyright Act as a work of this case.

C. Whether the work of this case and the book of this case are substantially identical

The protection of the Copyright Act is a creative expression form that explicitly expresses ideas and emotions on literature, science or art through speech, text, sound, color, etc. The contents of such expression, i.e., ideas and emotions on ideas or theories, etc., even though they have creativity, in principle, they are not subject to the protection of copyright as prescribed by the Copyright Act. In particular, in the case of works belonging to the academic scope, the academic contents should be shared to all people and the free use should be allowed for anyone, and the protection of copyright does not exist in the academic contents that are not creative expression form. Thus, in order to determine whether there is substantial similarity between two works in order to determine whether the copyright has been infringed or not, the right of reproduction is infringed even if another person's works are reproduced without permission. In this case, even if the original form has not been reproduced without permission and the idea, increase or decrease, or change is somewhat recognizable or sensed as to the original part, it shall also be deemed as a reproduction of the original part, and if it is a reproduction of the original part, it shall also be deemed as an essential work.

From this point of view, when referring to the method of expression shown in the preceding books shown in the prior books shown in the above explanatory documents, the parts of the instant work and the corresponding parts of the instant work are compared with each other as shown in the annexed table (However, the parts of the attached table Nos. 9 and No. 10-1 and No. 43 regarding local chips are omitted from the annexed table, which are the same as indicated in the attached table). Of the instant book, the parts of the attached table Nos. 1 through 11, 16 through 21, 23 through 39, 41, 43, and 44 are different from the parts of the instant work and the expressions are added, but as a whole, the whole parts of the instant work are substantially similar to each of the instant copyrighted works.

However, the applicant asserts that the remainder of the book of this case except for the above part is similar to each part of the work of this case, but the part not listed in the table of attached Table 12 through 15, 22, 40, 42, 45 through 53 and the part not listed in the table of attached Table 12 through 12, 22, 40, 42, 45 through 53 and the remainder cannot be expressed differently in the form of explanation from the point of view of the expert of color theory, or in cases where the part is limited to the part of which the whole book of this case is extremely small, it is reasonable to recognize the identity of the work of this case, and thus, it cannot be viewed that the part of the book of this case cannot be viewed as a reproduction. Accordingly, the plaintiff's assertion in this part is rejected.

3. Conclusion

According to the above, the applicant's application of this case is deemed sufficient to prove the right to be preserved, and the respondent denies the applicant's copyright to the work of this case and continuously selling the books of this case can be clearly acknowledged by the entries of evidence No. 33 and the purport of the whole pleadings, and thus, the necessity of preservation is also recognized. However, as long as the book of this case is recognized as a separate work even with the exception of the part of the attached Table Nos. 1 through 11, 16 through 21, 23 through 39, 41, 43, and 44, as seen earlier, it constitutes excessive claims to seek delivery of the whole book of this case, the production, distribution, prohibition of sale, finished products, and semi-finished products. Thus, it is reasonable for the applicant to prohibit the production and distribution of the book of this case under the condition that the respondent does not delete the above part of the work of this case, possession of the above book, possession of the finished products, possession of the finished products, and to delegate the delivery of the finished products to the execution officer.

Thus, the decision of the court of first instance is unfair with different conclusions, and thus, it is so decided as per Disposition by accepting the appeal of the creditor and cancelling the decision of the court of first instance, and admitting part of the creditor's application on the condition of offering security as above.

Judges Kim Young-tae (Presiding Judge)

Judges' Voluntary impunciaciaciacia