[1] The meaning of “original production,” which is the element of “works” as stipulated in Article 2 subparag. 1 of the Copyright Act / Whether the so-called “rith broadcast program” produced in a situation expressed by contributors, etc. only on the basis of the approximate composition plan without a specific script may be protected as a copyrighted work (affirmative), and matters to be considered when determining the originality of the rith broadcast program

[2] Criteria to determine whether there exists a substantial similarity between two copyrighted works, and whether the idea or appraisal of ideas or theories itself is subject to protection of copyright (negative in principle)

[3] The meaning of the term "domestic widely known" under Article 2 subparagraph 1 (c) of the Unfair Competition Prevention and Trade Secret Protection Act

[4] Whether a competitor's act constitutes a tort under the Civil Act in cases where the competitor's act of using the outcome of considerable effort and investment without permission for his/her own business, thereby obtaining unjust profits and infringing on competitor's legal interests worth protecting (affirmative)

[1] Article 2 Subparag. 1 of the Copyright Act defines a work as “a creative production that expresses human thoughts or emotions” and requires creativity. Even though creativity does not require complete originality, to be recognized as creative, a certain work must not simply imitate another’s work, and must include the author’s own expression of ideas or emotions. Thus, it cannot be said that the work contains expressions that cannot be identical or similar to any other person’s creative identity, i.e., expressions that can not be revealed as to the author’s creative identity.

The so-called ice broadcasting program, which is produced in a situation expressed by contributors, etc. on the basis of only a specific large-scale component without any specific representation, may be protected as a copyrighted work, if there is such originality. The ice broadcasting program consists of various elements, such as stage, background, props, music, progress method, and game rules. These elements may manifest characteristics or characteristics that are clearly distinguishable from other programs by being selected and arranged in accordance with a specific production intent or policy. Therefore, when determining the creativity of the ice broadcasting program, it is reasonable to consider that these individual elements, other than each individual elements constituting the program, have been selected and arranged in accordance with a specific production intent or policy, and the program itself has a creative identity distinct from those of other programs, so that it has reached the extent to be protected as a copyrighted work.

[2] In determining whether there exists a substantial similarity between two copyrighted works in order to determine whether a copyright has been infringed, it shall be deemed to be compared only with those falling under the creative expression form, and shall not be taken into account whether the idea or appraisal itself, which is not the expression form, is a creative expression form that explicitly expresses human thoughts or emotions by speech, letter, sound, color, etc. The subject of copyright protection is a creative expression form that expresses human thoughts or emotions externally, and it is not, in principle, the subject of copyright protection.

[3] In light of the legislative intent and legislative process of Article 2 subparag. 1(c) of the Unfair Competition Prevention and Trade Secret Protection Act, the term “public recognition in Korea” used in the above provision refers to the so-called “level of name,” which is widely known to the general public, in addition to the relevant traders, beyond the “level of name,” known among consumers within a certain area and discharged from the Republic of Korea or within a certain area.

[4] An act of using the outcome of considerable effort and investment by a competitor without permission for one's own business in violation of business ethics or the order of fair competition, thereby obtaining unjust profits by taking advantage of the competitor's efforts and investment and infringing on competitor's interests worth legal protection, is an act of unfair competition, and constitutes a tort under the Civil Act.

[1] Article 2 subparagraph 1 of the Copyright Act / [2] Articles 2 subparagraph 1, 10, 123, and 125 of the Copyright Act / [3] Article 2 subparagraph 1 (c) of the Unfair Competition Prevention and Trade Secret Protection Act / [4] Article 750 of the Civil Act

[1] [2] Supreme Court Decision 2009Do291 Decided February 10, 201 (Gong2011Sang, 594) / [2] Supreme Court Decision 2011Do3599 Decided August 22, 2013 (Gong2013Ha, 1716) / [3] Supreme Court Decision 2004Do651 Decided January 26, 2006 / [4] Supreme Court Decision 2008Ma1541 Decided August 25, 2010 (Gong2010Ha, 1855) (Gong2010Da20444 Decided March 29, 2012)

SP Co., Ltd. (Attorneys Ansan-type et al., Counsel for the defendant-appellant)

C&M Co., Ltd. (Law Firm LLC, Attorneys Choi Jong-he et al., Counsel for the plaintiff-appellant)

Net Game Business Co., Ltd. (Law Firm LLC, Attorneys Choi Jong-he et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2013Na54972 decided July 3, 2014

Of the judgment below, the part on Defendant 2’s video works as indicated in the judgment below is reversed, and that part of the case is remanded to the Seoul High Court. The remaining appeal is dismissed. The Defendant 1’s motion to resume the lawsuit is dismissed. The cost incurred by the motion to resume the lawsuit

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Regarding ground of appeal No. 1

A. (1) Article 2 Subparag. 1 of the Copyright Act defines a work as “a creative production that expresses human thoughts or emotions” and requires creativity. Even if creativity does not require complete originality, to be recognized as creative, a certain work must not be imitated with others, and must include the author’s own expression of ideas or emotions. Thus, it cannot be said that the work contains any expression that does not have the same or similar creative identity of the author of the work, i.e., any expression that does not indicate the creative identity of the author of the work, i.e., the creative identity of the author of the work (see, e., Supreme Court Decision 2009Do291, Feb. 10, 201).

The so-called ice broadcasting program, which is produced in a situation expressed by contributors, etc. on the basis of only a specific large-scale component without any specific representation, may be protected as a copyrighted work, if there is such originality. The ice broadcasting program consists of various elements, such as stage, background, props, music, progress method, and game rules. These elements may manifest characteristics or characteristics that are clearly distinguishable from other programs by being selected and arranged in accordance with a specific production intent or policy. Therefore, when determining the creativity of the ice broadcasting program, it is reasonable to consider that these individual elements, other than each individual elements constituting the program, have been selected and arranged in accordance with a specific production intent or policy, and the program itself has a creative identity that is distinct from those of other programs, so that it has reached the degree of protection as a copyrighted work.

(2) In determining whether there exists a substantial similarity between two copyrighted works in order to determine whether a copyright has been infringed, it shall be deemed to be compared only with those falling under a creative expression form, and shall not be taken into account whether the idea or appraisal itself, which is not an expression form, is a creative expression form that explicitly expresses human thoughts or emotions by speech, letter, sound, color, etc. The subject of copyright protection is a creative expression form that expresses human thoughts or emotions externally, i.e., ideas or emotions of ideas or theories, etc. which are expressed, in principle, are not subject to copyright protection (see, e.g., Supreme Court Decision 2011Do3599, Aug. 22, 2013).

B. In full view of the aforementioned legal principles and the following circumstances revealed in light of the evidence duly admitted, Plaintiff’s video works as indicated in the holding of the lower judgment have creative characteristics distinct from the existing broadcast program, and may be protected as a work, barring special circumstances.

(1) The Plaintiff’s video work is a ice broadcast program that recorded the process in which both men and women, who are in a marriage-oriented life, live together for a certain period of time in the space of “pet village,” and they find their even number through self-introduction, game, transfer, etc.

In the past, there was a form of broadcast program that forms an even number of men and women who contributed to a marriage-aged society and finally select the counterpart for their mind through games, dialogue, etc. However, the Plaintiff’s video works are distinct from the existing programs in that they allow them to gather in one place and act in accordance with the rules and regulations set by the production progress while living together in one place by the male and female who contributed to the society without the program, and make them objectively observe the interaction occurring in the process.

(2) 원고 영상물은 출연한 남녀들이 짝을 찾아가는 모습을 최대한 꾸밈없이 드러나도록 하고 시청자들이 이를 객관적으로 관찰하는 느낌을 갖도록 여러 가지 요소들을 선택하여 결합하고 있다.

In other words, both men and women who contribute to the program are isolated from society for a considerable period of time and live together in a dormitory, and the remaining personal information is not revealed except for the age and occupation of contributors, they are guaranteed to each gender, and they are used a name that is not commonly used in society, such as male No. 1 and female No. 1, to express the contributors in a more objective.

In addition, through the time of self-introduction, the performers show their own ability, such as allowing the performers to select the same-sex counterpart, and allowing the same-sex competition in order to obtain the right to transfer with the desired opposite party, the form of competition to find even in a general society is further reduced and symbolicly shown.

In this context, the elements such as interview with the producer or telephone call with his family members are placed in the middle of the program to display the leading form and the inner sense of the contributor to the viewers and deliver them to the viewers.

Furthermore, it maximizes the perception that both men and women can objectively observe and observe the appearance of men and women by delivering it to viewers through a sexual intercourse using flat language and literary body, such as documentary document programs, such as the overall process of these cases and the deliberation of contributors.

(3) Individual elements cited by the lower court are insufficient to recognize creativity solely on the ground that they belong to the domain of ideas or have already been used in other programs. However, on the basis of the accumulated broadcasting production experience and knowledge of the Plaintiff’s side, only the elements deemed necessary in light of the nature of the above program, the Plaintiff’s video works arranged according to the editing policy, independent of whether the individual elements constituting it are creative identity distinct from the existing broadcasting program as seen above, may be deemed as having sufficiently concrete the selection and arrangement of the elements, separate from whether the individual elements constituting it are recognized as creative.

C. In light of the above creative characteristics of the Plaintiff’s video work, we examine the actual similarity between the Plaintiff’s video work and Defendant 1’s video work as indicated in the lower judgment.

(1) Defendant 1’s video work is produced by borrowing the basic hair or part of the composition of Plaintiff’s video work that both men and women who are gathered in the patriotic village were found even through self-introduction or game.

However, the program nature is different from the Plaintiff’s video work in that the program is not a ice broadcast program that is conducted by the interaction between the contributors without specific scripts, such as the Plaintiff’s video work, but rather a ice broadcast program that is not a program that is conducted in accordance with the interaction between the contributors without specific scripts.

In addition, the selection and arrangement of individual elements that take place as a whole in order to see the interaction between men and women who find the plaintiff's video work seriously and their interaction with the nature of the program objectively shown, and to see it as a whole, the characteristics of the video work are as follows. On the other hand, according to the nature of the program, the defendant's video work is characterized by an exaggerated situation where it is difficult to occur as much as possible in reality, depending on the nature of the program, which is a codry for adults, and the case is composed of a extreme development center, so that the whole and the case sees an atmosphere.

As such, since there is a considerable difference between the Plaintiff’s video work and Defendant 1 in the nature of the program, appearing figures, specific case progress and content, its composition, etc., it is difficult to see that there is a substantial similarity between them.

(2) On the grounds indicated in its reasoning, the lower court rejected the Plaintiff’s copyright infringement claim on the grounds that the Plaintiff’s video work and Defendant 1’s video work were not substantially similar.

(3) As seen earlier, the part of the lower court’s determination that denied the copyrighted nature of Plaintiff’s video work was erroneous, but the lower court’s determination that denied substantial similarity between Plaintiff’s video work and Defendant 1 is acceptable. In so doing, contrary to what is alleged in the grounds of appeal, there were no errors by misapprehending the legal doctrine on the originality and substantial similarity of the video work, which affected

D. In light of the above creative characteristics of the Plaintiff’s video work, we examine the actual similarity between the Plaintiff’s video work and Defendant 2’s video work as indicated in the lower judgment.

(1) Defendant 2 collected both men and women who enjoy a game at the place of "Daungon" and found the existence of the nature that they will play a game. As such, Defendant 2 borrowed the basic structure of the Plaintiff’s video work that both men and women want to be admitted to the pet village and used the core elements constituting the Plaintiff’s video work, such as the uniforms and names of male and female contributors from the course of admission to the pet village, self-introduction, and the development of the program through the interview and the display.

In addition, as in the Plaintiff’s video work, these elements are specifically written and expressed so that they can be seen as a ice broadcast program, which is characterized by objectively observing the gender contributed to Defendant 2’s viewers, as in the same manner as in the Plaintiff’s video work.

Although Defendant 2’s video work was produced for the purpose of promoting the Defendant’s game, and is not a program to show the interaction between the general men and women who actually find even, from the perspective of viewers, it seems difficult for viewers to feel a difference between the difference between the Plaintiff’s video work and the Defendant’s video work 2. In addition, Defendant 2’s video work introduced the Quast system in online games and added part of the elements that are not shown in the Plaintiff’s video work, such as having the contributor act according to a given duty different from his own horse, but the qualitative or quantitative share of these elements in Defendant 2 exists.

In full view of the above circumstances, there is room to view that the creative characteristics of the Plaintiff’s video work on the selection and arrangement of components between the Plaintiff’s video work and Defendant 2 are recognized as substantial similarity in the contents of Defendant 2’s video work.

(2) However, the court below rejected the Plaintiff’s copyright infringement claim on the following grounds: (a) it concluded that the Plaintiff’s video work and Defendant’s video work are not deemed to have any substantial similarity on the grounds that the Plaintiff’s video work and Defendant’s video work were not recognized solely on the grounds that the Plaintiff’s video work did not properly examine the creativity arising from the selection and arrangement of elements regarding the Plaintiff’s video work

(3) Thus, this part of the judgment of the court below is erroneous in the misapprehension of the legal principles as to the creativity and substantial similarity of video works and failing to exhaust all necessary deliberations, which affected the conclusion of the judgment. The ground of appeal assigning this error is with merit

2. Regarding ground of appeal No. 2

A. As to the ground of appeal as to the act of confusion as to the product principal and the act of confusion as to the business principal

(1) The court shall decide whether a factual assertion is true in accordance with logical and empirical rules, based on the ideology of social justice and equity, by taking into account the purport of the entire pleadings and the results of the examination of evidence (Article 202 of the Civil Procedure Act). The fact that the judgment of the court below did not go beyond the bounds of the principle of free evaluation of evidence, and the court of final appeal shall bind the court of final appeal (Article 43

(2) On the grounds indicated in its reasoning, the lower court determined that the Defendant’s production and broadcasting of Defendant 1’s video did not constitute an unfair competition act under Article 2 subparag. 1(a) and (b) of the Unfair Competition Prevention and Trade Secret Protection Act (hereinafter “Unfair Competition Prevention Act”).

(3) (A) The part of the grounds of appeal disputing the determination of the lower court’s fact-finding is merely an error in the selection of evidence and the determination of the value of evidence, which belong to the free trial by the fact-finding court.

(B) Examining the reasoning of the lower judgment in light of the evidence duly admitted, the following circumstances are revealed.

The face value of the Plaintiff’s video works is merely merely the content of the video works, and it is difficult to say that it has a function as a product mark or business mark in itself, and there is no other evidence to deem that the face value of the Plaintiff’s video works is considerably recognizable to viewers as a product mark or business mark of the Plaintiff’s video works.

In addition, Plaintiff’s video works are broadcast through the SBS channel, which is a ice broadcast program that is broadcast for about 60 minutes in each week, while Defendant 1’s video works are broadcast through the “tvN” channel, which corresponds to approximately 6 minutes’ portion of the codiv program with a separate title “SNL Korea.”

Ultimately, even though whether the title of the Plaintiff’s video work can be seen as a product mark or business mark widely known in the Republic of Korea, it is difficult to deem that there may be confusion between the Plaintiff’s video work and Defendant 1’s video work.

(C) In addition to the above circumstances and in light of the relevant legal principles and the evidence duly admitted, the above conclusion of the court below is acceptable. Contrary to the allegations in the grounds of appeal, there were no errors in the misapprehension of legal principles as to well-knownness and possibility of confusion related to unfair competition under Article 2 subparag. 1(a) and (b) of the Unfair Competition Prevention Act, or in the misapprehension of legal principles as to the possibility of confusion,

B. As to the ground of appeal as to the act of impairing distinctiveness or reputation

(1) In light of the legislative intent and the legislative process of Article 2 subparag. 1(c) of the Unfair Competition Prevention Act, the term “domestic widely known” used in the above provision refers to the so-called “level of name,” which is widely known to the general public, in addition to the relevant traders, beyond the “level of name,” known to the general public within the scope of domestic discharge or a certain area (see, e.g., Supreme Court Decision 2004Do651, Jan. 26, 2006).

(2) For reasons indicated in its holding, the lower court determined to the effect that it does not constitute a product mark or business mark widely known in the Republic of Korea under Article 2 subparag. 1(c) of the Unfair Competition Prevention Act, on the grounds that there is no other evidence to acknowledge that the pages contained in the Plaintiff’s title and the video products reached a well-known degree beyond the degree of recognition as the Plaintiff’s product mark or business mark.

(3) The allegation in the grounds of appeal is purporting to dispute the fact-finding that led to the lower judgment, and is merely an error of the selection of evidence and the determination of the value of evidence belonging to the free evaluation of the fact-finding court. In addition, examining the reasoning of the lower judgment in light of the evidence duly admitted, the lower court’s aforementioned determination is based on the above legal doctrine, and contrary to what is alleged in the grounds of appeal, there is no error of misapprehending the legal doctrine regarding the act under Article 2 subparag.

3. As to the third ground for appeal

An act of using the outcomes of considerable effort and investment by a competitor without permission for his/her own business in violation of business ethics or the order of fair competition, thereby gaining unjust profits by taking advantage of the competitor's efforts and investment and infringing on competitor's legal interests worth protecting (see, e.g., Supreme Court Order 2008Ma1541, Aug. 25, 2010).

For the reasons indicated in its holding, the lower court determined that the Defendant’s production and broadcast or transmission of Defendant’s video works using some materials, pages, ideas, etc. of Plaintiff’s video works do not constitute an illegal act as an illegal competition act.

Examining in light of the aforementioned legal principles and the evidence duly admitted, Defendant 1’s video work, unlike Plaintiff’s video work, is an adult target codification program, and not only is it the subject codification program, but also as Defendant produced Defendant 1’s video work by borrowing the basic mother hub or part of Plaintiff’s video work, and as long as Defendant produced video work with various creative elements that do not exist in Plaintiff 1’s video work by taking cost and effort based on his own idea, it is difficult to deem that the Defendant’s act constituted the above tort.

Therefore, we affirm the judgment of the court below that reached such a conclusion. Contrary to the allegations in the grounds of appeal, we do not err by misapprehending the legal principles as to liability for damages caused by tort, or by misapprehending facts.

4. As to a request for a takeover of proceedings

In the course of the division and establishment from the defendant, the applicant for taking over the lawsuit by the defendant asserts that he had taken over all rights and obligations related to the two parts of the lawsuit in this case, and filed an application for taking over the lawsuit with the Supreme Court after the deadline for filing the appellate brief. However, in light of the progress of the lawsuit in the Supreme Court, the application for taking over the lawsuit by the defendant is unnecessary.

5. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal as to Defendant 2’s video work, the part as to Defendant 2’s video work among the judgment below is reversed, and this part of the case is remanded to the court below for further proceedings consistent with this Opinion. The remainder of the appeal is dismissed, and the motion to resume the lawsuit is dismissed, and the cost incurred by the motion to resume the lawsuit is borne by Defendant 2. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Sang-ok (Presiding Justice)