(영문) 서울고등법원 2007.5.22.선고 2006나47785 판결

2. The costs of appeal between the plaintiffs, defendant 1, and defendant 2 shall be borne by each party, and the costs of appeal between the plaintiffs, defendant 3, and defendant 4 shall be borne by the plaintiffs.

Purport of claim and appeal

1. Purport of claim

The defendants shall not perform in good faith any performance in the musical manner. The defendants shall be jointly and severally liable to perform in good faith.

50,000,000 won shall be paid to the plaintiffs.

2. Purport of appeal

The purport of appeal by the plaintiffs: the part against the plaintiffs regarding the prohibition of performance in the judgment of the first instance.

Defendants are prohibited from performing in good faith any other way. The term “voluntary” as the musical term “shall not indicate any performance in good faith.

Defendant 1 Company and Defendant 2’s purport of appeal: Revocation of the part of the first instance judgment against the above Defendants

C. The plaintiffs' claims against the above Defendants corresponding to the revocation part are all dismissed.

Reasons

1. Scope of the judgment of this court;

The plaintiffs asserted that "Eve," in the musical notes, "(the following, the musical notes that the plaintiffs planned, produced, or fited, among these musical notes, were reduced to "the first musical notes", and that the author's property rights, etc. of defendant 1 corporation, defendant 3 corporation, and defendant 2 "the musical notes planned, produced, and launched by the defendant 2" were against the plaintiffs, and claimed damages against the defendants who have performed, or performed, the musical notes in this case, for the prohibition of performance in the musical notes and infringement of the above author's property rights.

The first instance court accepted part of the claim against Defendant 1 Co., Ltd. (hereinafter referred to as “Defendant 1 Co., Ltd.”), and Defendant 2 among the claims for the prohibition of performance, and ordered the prohibition of use of household affairs as indicated in the attached Table, and rejected part of the claim against Defendant 1 Co., Ltd. and Defendant 2 among the claims for damages, and ordered the payment of the amount (10 million won) stated in paragraph 2 of the judgment of the first instance court. On the other hand, the court dismissed all of the claims against Defendant 1, Defendant 2, and Defendant 3 Co.,, Ltd. (hereinafter referred to as “Defendant 3”) against Defendant 4, Defendant 1, and Defendant 2.

Therefore, among the part against the plaintiffs in the judgment of the court of first instance, the plaintiffs appealed on the part of the claim against the defendants for prohibition of performance, and the defendant 1 and the defendant 2 appealed on the whole part against the above defendants in the judgment of first instance.

Therefore, the scope of this court's adjudication is the entire part of the plaintiffs' performance prohibition claim and the part against the defendant 1 company and defendant 2 among the damages claim part, and the part against the plaintiffs among the damages claim part is excluded.

2. Summary of the plaintiffs' assertion

The plaintiffs are entitled to protection under the Copyright Act separately from whether the musical work of this case is established, such as the musical music, the musical music, the musical music, the musical music, the musical music, the musical music, and the musical music, and the musical music, and the musical music, the musical music, and the musical music, and the musical music, which are the elements of the musical music, are independently protected under the Copyright Act. <2> The plaintiffs jointly or solely own the musical music, the musical music, the musical music, and the musical music, the musical music, and the musical music, which are the elements of the musical music, are transferred to the plaintiffs. <3> Defendant 2 and 4 exclusively permitted the use of the musical music, the musical music, and the musical music, the musical music of this case of this case of this case of this case of this case of this case of this case of this case of this case of this case of this case of this person of infringement of the plaintiffs' right to use the registered service mark in the attached Table 2 of this case of this case of this case of the defendants of this case of this case of infringement of rights and damages against the defendants of this case of this case of public performance and its rights.

3. Basic facts

A. The facts below the plaintiffs' initial musical production and performance do not conflict between the parties, or they can be acknowledged by taking into account each of the statements and the whole purport of the arguments and arguments in Gap evidence Nos. 3 and 4-1, 2, 7, 8-2, 1, 3, 4, 7, 12, 13, 22, 23, 2, 2, 5-2, 16, 17-1, 25-3, 1, 25-1, 25-3.

(1) At around 1995, while creating a compliance and planning its creative performance works, the Plaintiffs, the film of the United States, a film of the United States, which is a subject of conflict between love and love and punishment, based on the marism of a marome, with which “(MyFbula Baerer Bas)” was produced as a musical group, and Plaintiff 1, a producer, Plaintiff 2, and Plaintiff 3 participated in the mar investment and produced the mar musical group.

(2) The first musical community does not perform as it is or translated of foreign works, but rather has been planning and produced for the first time in the Republic of Korea, and thus has to create musical, musical, and household effects. The Plaintiffs requested Defendant 2 to prepare the first musical, musical, and the first musical, musical, etc.

(3) The musical actors of Nonparty 1, 2, 3, and 4, from July 1995 to July 29 to July 29 of the same year, were engaged in physical practice on the basis of the musical music and the respective parts, etc. completed by Defendant 2 and 4 from around July 1995 to around July 29 of the same year. (4) The Plaintiffs were successful in entertainment with the musical musical performance from around 195 to around 29 of the same year.

11. From March 1 to May 5 of the same month, the Busan citizen's center performed the first musical performance in the local group of the musical group, etc. from March 1995 to 199, and performing the first musical performance in Seoul and local areas more than 50 times from 1995 to 199.

(5) On the other hand, the first musical group, successful in the entertainment, recognized the nature of the works, such as Non-party 2, from the second Korean musical group, Non-party 3, Non-party 3, and Defendant 2's winning music prizes in 1996.

B. Since then, on May 16, 199, the plaintiffs (1) held the first musical group in the Solar located in Seoul around May 16, 199 and did not play the second musical group. (2) The non-party 5 (mutually omitted representative) who participated in the production of the first musical group, participated in the production of the second musical group.

2. Between Defendant 2 and Defendant 2 on April 6, 2001, the term “voluntary” used as the musical term “from April 6, 200 to July 1 of the same year.

Until now, Defendant 2 held a public performance in Seoul, but Defendant 2 entered into an agreement with Defendant 2 to take charge of the music of the performance (revision and recording of writing and letter) and to pay KRW 20 million to Defendant 2 (Provided, That for local performances, a subsequent agreement was made). At that time, Defendant 4 paid KRW 5 million to Defendant 4 about the performance of the above musical group.

(3) From June 26, 2002 to July 14, 200 of the same year, Nonparty 5 performed the above musical work from April 2001 to February 3, 2003, Defendant 1 and Defendant 3 agreed to jointly produce the instant musical work and to produce the musical work from December 5, 2003 to Defendant 2, Defendant 2, Defendant 4, and Defendant 2, Defendant 2, and Defendant 4 agreed to jointly produce the instant musical work and to produce the musical work from May 200 to February 4, 200. Defendant 2, Defendant 4 and Defendant 3, who had been in charge of the instant musical work from April 200 to February 200, Defendant 2, Defendant 200 to Defendant 4, Defendant 2, and Defendant 2, who had been in charge of the instant musical work from May 25, 200 to Seoul.

(6) Defendant 1 continued to be Defendant 2 and 4 as the person in charge of the production and production of rice and the person in charge of the theater, and Defendant 1 had commenced re-performance from June 13, 2004 and had been performing the instant musical group in Inkela, etc. in Seoul until now.

(7) While performing the instant musical work, Nonparty 5, Defendant 1, Defendant 3 et al. publicizeds that the performing works would succeed to the original musical work by the Plaintiffs, and Defendant 1 Company advertises that the performing works currently being performed are being performed for a long period of more than 1,00 times for a period exceeding 10 years from the beginning of the performance.

4. Judgment on the plaintiffs' assertion of copyright infringement

A. Whether the musical elements of this case can be protected as an independent work in addition to whether the musical elements of this case can be established and the musical elements of this case can be protected as an independent work (1)

The plaintiffs asserted that, although the elements of the musical community, such as the musical community of this case, cannot be separated from musical, musical, musical, musical, musical, stage equipment, lighting, artificial, and smoke, it is not possible to distinguish them from musical, musical, musical, and other elements, such as the musical community of this case. However, if they are systematically combined and completed into a new artistic work, and if they are separated from musical elements, they would lose the level of artistic completion and value as a comprehensive artistic work. Thus, regardless of whether the elements of the musical community are established or not, the musical community itself is established as a work subject to the protection of the Copyright Act, and the subject that realizes a high level of artistic (the United States) by systematically combining the elements in the production process of the musical community is the producer and the musical investment of the producer, they have copyright as an independent work. The plaintiffs asserted that they are copyright of the musical community of this case and the musical copyright holder of the musical community of this case.

(2) Determination.

(A) The Copyright Act (hereinafter referred to as the “Act”) provides that a work protected by this Act is a creative production belonging to the scope of literature, science, or art, and that is prescribed by Article 4(1) of the Act provides that a work is an example of the subject of protection. Thus, if a creative production expresses ideas or emotions relating to literature, science, or art, it may be recognized as a work protected by the Act even if it is not in the form prescribed by Article 4(1) of the Act.

Furthermore, the musical community is one of the most fake comprehensive arts closely corresponding to the extreme composition and development of the theater (e.g., music, books, housework, internal affairs, stage equipment, lighting, parliamentary books, performances, etc., and is generally recognized as one of the works performed as a single work under the overall coordination, direction, and supervision of producers’ planning, annual investment, and supervision.

However, in order for a musical community to be established as a work protected by the law separate from its constituent elements, parts of the musical work contributed to the creation of the participants in the production and performance can not be separately used (see Article 2 subparag. 13 of the Act on Joint Works). The musical work, each of the authors who participated in the production and performance of musical works, which is a musical constituent element, is subject to the protection of copyright as a creative production that expresses human thoughts and emotions. For example, for instance, musical works are publicly performed and broadcasted independently or jointly with musical works, or each of the musical works is published independently from their own musical works or is displayed independently in the production and performance of musical works, the musical work should be deemed as a combination of musical works (see Article 2 subparag. 13 of the Act on Joint Works), and the production and performance of musical works shall be deemed as a combination of musical works, and the production and performance of musical works shall be deemed as a combination of rights and interests of all the authors who participated in the production and performance of musical works (see, e.g., Supreme Court Decision 200Mo460.

However, since a cinematographic work is a creative production in which a series of cinematographic works is recorded and is able to be seen or seen and heard through a reproduction with a machine or an electronic device (Article 2 subparag. 10 of the Act), it cannot be applied mutatis mutandis to a musical journal, which is a type of musical work, solely on the ground that there is a aspect similar to the production process of a cinematographic work, such as: (a) it is apparent that it does not fall under the foregoing; and (b) it is obvious that the musical producer does not fall under the foregoing; and (c) there is a aspect similar to that of the production process of a cinematographic work in which many people participate in the production and performance of the cinematographic work (see Supreme Court Order 2004Ma639, supra).

(3) Sub-decisions

Therefore, the plaintiffs' assertion that the musical works are established as independent works separate from the establishment of works of elements such as musical music, each part, etc. or the reversion of copyright, and that the copyright belongs to the producer and the musical investment is not acceptable.

B. The summary of the plaintiffs' assertion of the copyright holder (A) of the musically musically musically musically musically musically musically musically musically musically musically musically musically musically musically musically musically musically musically musically

The plaintiffs asserted that the plaintiffs not only requested Defendant 2 and 4 to perform their own musical and musical works as the production, planning, or annual contribution of the first musical music, but also completed the above musical and each text by leading the work. As such, the plaintiffs asserted that only or at least the plaintiffs are co-copyrights created with Defendant 2 and 4, respectively. (b) Recognition of related facts

The facts that Plaintiff 1 participated in the production of the original musical book by the producer, Plaintiff 2, Plaintiff 3 with the annual contribution, and the facts that the plaintiffs requested Defendant 2 to prepare the original musical book, and Defendant 4 with the draft of the original musical book, are as shown above, and the facts that Plaintiff 1 requested Defendant 3 to do so. The following facts can be acknowledged in full view of Gap evidence 3-1, 2, 6, 12, 12, 12-1, 13-1 through 3, Eul evidence 3, 6, 11, 22, 23-1, 5-2, 7, and 8-1, 7, and 8-1, 7, and 8-1, and part of the testimony of Non-Party 1 of the trial witness of the political party, and the fact that the testimony of Non-Party 1 is insufficient to establish the following facts.

As seen earlier, the reduced distance of the film is the same as that of the first musical group planning, and the first musical group planning is to give up the blue blue blue blue blue blue blue blue blue, and to support the family by being a music teacher who has given up the expectation of the punishment that had been successful in the brue blue blue blue blue blue blue blue blue blue blue blue brue, and to confirm the difficulties of the two brue brue blue brue blue blue blue blue blue blue blue blue blue blue blue blue blue blue

2) Defendant 2 had been working in the 1986 198, a year in which he was able to take charge of the writing of the musical music, and Defendant 2 had been working in the 1986 musical theater in charge of the musical music supervision and letter "on the 1988," "on the 3rd month," "on the 5th month," "on the 1988," "on the 1993 1st century, "on the 195th anniversary of the 195 195 195 195 19 1 1 1 1 1 1 1 5 1 1 1 1 1 1 5 1 1 1 1 195 1 1 1 5 1 1 1 1 195 1 1 5 1 1 1 1 195 1 1 1 1 195 1 1 1. 1 1 1 1 1 1. 1 1 1. 1.

3) On April 18, 1995, Plaintiff 1 requested Defendant 4 to produce each part of the draft musical group, and paid KRW 3 million at each production cost (Provided, That the contract between the Plaintiffs and Defendant 4 did not appear to have been written).

4) On behalf of the Plaintiffs on July 8, 1995, Plaintiff 2 entered into a contract with Defendant 2 recommended by Nonparty 1 on behalf of the Plaintiffs with the following content:

5) The Plaintiffs provided the idea of draft medicine to Defendant 2 and 4, and Defendant 2 and Defendant 4 made and sent each text of the musical music and each text to the Plaintiffs. The Plaintiffs 3 and Nonparty 1 presented their opinions on them, and Defendant 2 and Nonparty 4 completed the first musical music and each text of the musical music, reflecting their opinions.

In the case of the draft of the draft of the draft of the second term, the title of Defendant 4 first created was 'the date of 40 years of age', and the title of each draft of the draft was 'the date of the first term,' 'the date of the first term, 'the date of the first term, 'the date of the first term, 'the date of the first term, 'the date of the first term, 'the date of the first term of the sentence, 'the Ethoma', and 'the second term of the Piano No. 2' were attached to 'the date of the first term, 'the date of the first term, 'the date of the first term, 'the date of the first term', 'the date of the first term, 'the Pianno No. 1', 'the date of the first term, 'the first term', and 'the second term' in accordance with the plaintiff 2's opinion, indicated the musical person as 1, 2, and 4.

1) The author under the Act refers to a person who has created a work and has embodied ideas or emotions belonging to the scope of a literature, science, science, or art as a creative expression. The protection of the Act is a creative expression form that specifically expresses ideas or emotions pertaining to literature, science, or art by verbal, written, sound, color, color, etc. It is a creative expression form that externally expresses such ideas or emotions. The content that is expressed, i.e., ideas or emotions of ideas, etc. are creative, but they are not subject to copyright protection (see, e., Supreme Court Decision 98Da46259, Nov. 26, 199). If a person who has created ideas, etc. subject to creative expression does not contribute to embodying such ideas, etc. as a creative expression, he/she may not be deemed the author of a work.

On the other hand, in performing or broadcasting a work, a person whose real name (real name) or well-known pseudonym (alias) is indicated as the author is presumed to be the author of the work (Article 8(1)2 of the Act).

2) Based on the facts acknowledged above, Defendant 2 and Defendant 4’s work experience, the Plaintiffs and Defendant 2’s contract contents (in the case of Defendant 4, contract contents were not written between the Plaintiffs, but they seem to be significantly different from Defendant 2’s case.) The Plaintiffs and Nonparty 1, etc. were involved in the completion of the original musical music and each part of the musical music and drama, and the indication of the person in charge of the musical and dramatic music of the original musical music, etc., the author or copyright holder of the original musical music is Defendant 2, and the author or copyright owner of each part of the musical music should be deemed Defendant 4. On the other hand, the Plaintiffs planned and supervised the production and performance of the musical musical music, and the overall production and performance of the musical musical musical musical musical musical musical musical musical musical musical musical musical musical musical musical musical musical musical musical musical musical musical musical musical musical musical musical musical musical musical musical musical musical musical musical musical musical musical activities, and the Plaintiffs cannot be said to have been determined or excluded from Defendant 2 and Defendant 4’s musical musical activities.

3) As to this, in light of the fact that the plaintiffs employed Defendant 2 and 4 and written the musical music and each text of the musical music, the plaintiffs asserted that the musical music and each text constitute a work of organization under the name of the organization under Article 9 of the Act, and that the author is the plaintiffs who are the employers of the defendant 2 and 4 or (trade name omitted).

For the purpose of the establishment of works under the name of the organization under Article 9 of the Act, it is not sufficient that certain works have been prepared under the planning of the planning person, and not only should the originator be an employee of the planning person, but also should be made public in the name of the planning person.

In addition, in interpreting Article 9 of the Act on the Copyright of Works in the Name of Organization, this provision shall be interpreted as limited to the extent that it is an exception provision, and it shall not be applied to the contract for the production of works by expanding or analogical interpretation (see Supreme Court Decision 92Da31309 delivered on December 24, 192, etc.).

However, based on the facts acknowledged above, comprehensively taking account of Defendant 2 and 4’s career, the terms and conditions of the contract between the Plaintiffs and Defendant 2, the degree of participation of the Plaintiffs and Nonparty 1 in the completion of each part of the musical music and each part of the musical music and each part of the musical music, etc., it cannot be deemed that there was a actual relation of use, such as the actual direction and supervision, between Defendant 2, 4 and the Plaintiffs with respect to the preparation of the musical music or each part of the musical music, and it cannot be deemed that the said musical music and each part of the said musical music were published in the name of the Plaintiffs or (trade omitted).

Therefore, the musical music and each part of the musical music cannot be considered as a work under the name of organization under Article 9 of the Act.

4) Next, in light of the fact that the plaintiffs requested the preparation of the above copyright to Defendant 2 and 4 with the intent of using it as a material of the first musical field, the plaintiffs invested a large amount of funds in the production and performance of the first musical field while under consideration of the risk of losses in the investments caused by entertainment failure, and they paid expenses to Defendant 2 and 4 in excess of 10% of the total production cost, etc., although the plaintiffs, Defendant 2 and 4 did not prepare a contract with the plaintiffs that the copyright of the first musical field belongs to the plaintiffs, but if Defendant 2 and 4 did not recognize the ownership of the above copyright to the plaintiffs, it was argued that the plaintiffs did not request the preparation of the musical work or the musical work of the second musical field and that the third musical work of the third musical work of the first musical field belongs to the plaintiffs, and that the third musical work of the third musical work or the musical work of the author at the time of the execution of the works, the plaintiffs' genuine intent of the copyright holder and the second musical work of the plaintiff.

[The judgment on whether the plaintiffs' above claims were transferred to the effect that they were permitted to exploit copyright or public performance rights is changed shall be examined.]

However, Article 2 Subparag. 2 and Article 10(2) of the Act on the Reversion of Authors of Works and Copyright is a mandatory provision that cannot be modified by an agreement between the parties. Thus, a person who has failed to create a work under a contract between the parties cannot be deemed as the author or a person who has not created the work may not be deemed to have accrued from the time when the right of performance, which is a part of the author’s property right, was established (see, e.g.,

Therefore, the plaintiffs and defendant 2 and 4 cannot be deemed to have reverted to the plaintiffs from the time of establishment of the copyright or public performance right of the original musical musical musical musical musical musical musical musical musical musical musical musical musical musical musical musical musical musical musical musical musical musical musical musical musical musical musical musical musical musical musical musical musical musical musical musical musical activities. 5) Further, the plaintiffs asserted that the production and public performance right of the musical musical musical musical musical musical musical musical musical musical musical musical musical musical musical musical musical musical musical activities is unfair between the production and musical musical musical activities, and that the production and musical musical musical musical musical musical activities of the musical musical musical musical musical musical musical musical musical musical musical musical activities is not permitted, since the production and musical musical musical musical activities of the musical musical musical musical musical musical activities are not permitted, and the production and musical musical activities of the musical musical musical musical activities are not permitted to be created and publicly performed without permission to use the musical musical activities of the production and musical musical activities of the musical musical activities, and the production and musical musical activities of the musical musical activities are not permitted to be created and publicly performed without permission to use the musical musical activities of the production and musical musical activities.

[The judgment on whether the plaintiffs' above claims were transferred to the effect that they were permitted to exploit copyright or public performance rights is changed shall be examined.]

However, it is not sufficient to recognize that the statements of Nos. 18 through 22, No. 23-1 through 12, No. 24-5, and No. 25-27, and the testimony of Non-Party 1 and Non-Party 5 merely based on the statements of No. 18-22, No. 23-1 through 5, and No. 25-27, and the testimony of Non-Party 1 and Non-Party 5 have practices or customs that are facts alleged by the plaintiffs in the musical production and performance industry, and there is no other evidence to recognize them. As such, the legal provisions on the reversion of authors of works and copyrights as mentioned above are mandatory provisions, it is not possible

Therefore, according to the custom, which is the practice or fact of the musical production and performance industry, it cannot be said that the copyright of the first musical music and each musical text has reverted to the Plaintiffs from the time of its establishment. (D) The theory of patriarchy cannot be said that the copyright of the second musical music and each musical text belongs to the Plaintiffs.

Therefore, the plaintiffs' assertion that the plaintiffs acquired the copyright or public performance rights of the first musical music and each musical musical music and each musical music from the time of its establishment cannot be accepted. (2) The summary of the plaintiff's assertion by the plaintiff (a) the plaintiff and the defendants' copyright holders of domestic affairs (a)

The plaintiffs asserted that the copyright holder of the first musical household work is the plaintiff 3, and the defendants asserted that the copyright holder is the defendant 4, 1, or 3, and the defendant 4, and 2. (b) finding facts related to the above.

In full view of the statements in Gap's 6 through 8, 12, 21, and 13-1 to Eul evidence 11 and the testimony of non-party 1 of the trial witness of the court below, all of 14 stories were included in the original musical community. But the plaintiff 3 prepared 12 stories in the original musical column of the attached table among them by defendant 4 by completely changing the corresponding parts into the original musical community prepared by defendant 4 (the first musical house written by plaintiff 3 and the second musical house written by defendant 4 are the first musical house of the attached table and the second musical house of the above 4th residential house of the defendant 4, the second residential house of the above 3th residential house of the defendant 4 and the second residential house of the above 4th residential house of the defendant 4, the second residential house of the above 3th residential house of the defendant 4, the second residential house of the above 3th residential house of the defendant 4, the second residential house of the defendant 4, and the second residential house of the plaintiff 26.

In addition, at the time of the initial musical performance, there is no evidence to confirm what the musical work is on the record, and there is no evidence to confirm what the musical work is on the record, it cannot be said that Plaintiff 3 has copyright on the musical work.) (c).

Therefore, among the domestic affairs of the first musical community, Plaintiff 3 has the copyright as the author of the domestic affairs recorded in the first musical column of the attached list of domestic affairs. (3) Doing out and outing out of the Republic of Korea, the copyright holder of the domestic affairs of the first musical community.

The plaintiffs asserted that, as plaintiff 3's tobacco investment in the beginning of the year, the plaintiff 3 has a copyright as to its smoke and internal affairs, since the arrangement of stage screen pictures, lighting arrangement, and the rate and movement of actors, etc. are completed in whole on each page.

However, it is not sufficient to recognize that Plaintiff 3 had made a creative expression in the beginning of the musical year with the statement of No. 12, and there is no other evidence to acknowledge it.

Therefore, the plaintiffs' assertion that the plaintiff 3 is the author of the musical work and the musical work as the author of the musical work cannot be accepted.

However, comprehensively taking account of the overall purport of the arguments in the statements Nos. 3-1, 2, 7, 8, 12, 18, 21, and 13-1 through 3 of the evidence Nos. 3-1, 3-2, it can be acknowledged that the plaintiff 3 has performed the performances, dancing, etc. of the actors in the performance as the annual musical contribution, and there is no reflective evidence. Thus, the plaintiff 3 has neighboring rights as the performer provided for in Article 2-5 of the Act, which are provided for in Article 63 of the Act.

(4) Sub-decisions

Therefore, among the first musical household affairs of the first musical household affairs of only Plaintiff 3, the copyright on the first musical household affairs as indicated in the attached table of household affairs, the neighboring right as the performer of the first musical household affairs, and the rest of household affairs other than the second musical household affairs of the first musical household affairs, namely, the musical household affairs of the second musical household affairs, namely, the musical household affairs of the second musical household affairs, and the second musical household affairs, the plaintiffs cannot have the copyright.

C. Whether Defendant 2 and 4 transferred to the Plaintiffs the author’s property right of the musical music and each of the main parts

The plaintiffs asserted that even if the author or copyright holder of the first musical music and the second musical musical music and each musical text were Defendant 2 and 4, he/she should be deemed to have transferred his/her author's property rights and, in particular, his/her performance rights to the plaintiffs. As a specific basis, the plaintiffs included the circumstances set forth in the above (c) and (5).

However, examining whether Defendant 2 and 4 transferred to the Plaintiffs the author’s property rights or performance rights of the musical music and each part of the musical music, it is not sufficient to recognize the above only the descriptions of Nos. 7, 8, 18 through 22, and Nos. 23-1 through 12, and Nos. 23-1 through 3, and Non-Party 1’s testimony of the trial witness, and there is no other evidence to acknowledge the above.

Rather, in interpreting a copyright contract, where it is unclear whether it is a copyright transfer contract or a license agreement, and where it is not externally expressed that it has been transferred or used, it is reasonable to presume that the right has been reserved to the author if it is not externally expressed (see Supreme Court Decision 95Da29130 delivered on July 30, 196, etc.).

However, in the case of Defendant 2, who entered into a contract with the plaintiffs as to the first musical term, that there is no indication on the transfer of the musical term of the first musical term in the contract (the defendant 2 only agreed with the plaintiff 2 to complete the musical term of the first musical term so that it does not interfere with the production schedule of the first musical term.) In the case of defendant 4, according to the Eul evidence 23 and the testimony of the witness of the political party, the defendant 4 can be acknowledged that the defendant 2 did not perform the first musical term of May 16, 199, the last public performance of the first musical term of the plaintiff 1, and the plaintiff 2 transferred the musical term to the plaintiff 1, and there is no counter-proof evidence, that the plaintiffs' above recognized as having agreed to complete the work of the second musical term of the second musical term of the plaintiff 2, the production process of the first musical term of the plaintiff 2, the production of the musical term of the second musical term of the plaintiff 2, and the production process and the progress of the second musical term of the plaintiff 2.

Therefore, we cannot accept the plaintiffs' assertion that defendant 2 and 4 transferred the author's property rights of the musical music and each text to the plaintiffs.

D. The permission to use the musical music of Defendant 2 and 4 as well as each of the musical music of each of the plaintiffs, and the summary of the plaintiff's assertion (1) Won and the defendants' assertion

The plaintiffs allowed Defendant 2 and 4 to use the musical music and each musical text to the plaintiffs. In particular, the plaintiffs allowed to exclusively use the musical music and each musical text inserted into the musical language. The time limit for use is 20 years in light of the practices of the musical production and performance industry.

As to this, the Defendants asserted that Defendant 2 and 4 permitted the Plaintiffs to use the musical music and each text at the time of the performance of the musical music, but they had already been permitted to use the musical music and each text. (2) The judgment of the Defendants is to the effect that the currently permitted period of use has already expired.

First, as alleged by the plaintiffs, even if the plaintiffs obtained permission from Defendant 2 and 4 to exploit the musical music and each text of the copyrighted work, the person who obtained permission to exploit the copyrighted work is in the creditor position to exploit the copyrighted work differently from the transferor of the copyrighted work. Thus, even if the authorization relationship between the plaintiffs and Defendant 2 and Defendant 4 is an exclusive authorization relationship, the plaintiffs can claim against Defendant 2 and 4 the nonperformance based on the authorization relationship.

Unless there is any circumstance, Defendant 1 and Defendant 3 cannot exercise their right to demand the prohibition of performance directly against Defendant 1 and Defendant 3, not the party to the pertinent license agreement (as seen earlier, Defendant 1 and Defendant 3 obtained the consent of Defendant 2 and 4 as to the performance of the instant musical community).

On the other hand, as seen above, it is reasonable to view that Defendant 2 and Defendant 4 permitted the Plaintiffs to use the music and each part of the music and music produced by them with respect to the performance of the music and music, as seen above. However, even according to the record, it seems that not only the Plaintiffs, Defendant 4, but also the Plaintiffs and Defendant 2, whose written contract was made out, did not set the time limit for permission to use.

If the scope of the license to exploit copyrighted works is not clear, the parties should reasonably interpret the scope of the license in accordance with the general sense of society and the common sense of transaction by comprehensively taking into account various circumstances such as the motive and background leading up to entering into the license agreement, the purpose to be achieved by the license agreement, transaction practices, etc. (see Supreme Court Decision 2007 Supreme Court Decision 207Da20

2. 22. See Supreme Court Decision 2005Da74894 Decided 22.

However, as acknowledged above, the plaintiffs planned the draft musical music as a creative performance work of Seoul Museum, and accordingly, the plaintiff 2 requested the plaintiff 2 to work on behalf of the plaintiffs, and specified the contract period until October 29, 195, which is the scheduled Seoul performance period. However, the plaintiffs agreed to add the draft musical music to the amount of local performance, and the plaintiffs did not perform the draft musical music until May 16, 199. At that time, the plaintiff 4 requested that the plaintiff 1 do not perform the draft musical music, and the defendant 2 and 4 did not perform the draft musical music to the plaintiff 1, and the defendant 2 and 3 agreed to the production of the draft musical music and the execution of the second musical music and the second musical music and the second musical music and the second musical music relation between the defendant 1 and the defendant 3.

Furthermore, the descriptions of Gap evidence 24-1 to 5, 25-27 are not sufficient to recognize that there is a practice or fact that guarantees the right to use the musical and musical elements for 20 years to the production and musical elements in the musical production and performance industry, and there is no other evidence to acknowledge it.

(3) Sub-decisions

Therefore, Defendant 2 and Defendant 4 allowed the Plaintiffs to use the musical music and each text, but the relationship between Defendant 1 and Defendant 3, which began to perform the instant musical music, terminated on February 2004.

E. Whether the Defendants infringed on the Plaintiff 3’s copyright or neighboring rights (1) infringement on the copyright of the first musical household (a) Defendant 1, Defendant 3, and Defendant 2 (a)

Plaintiff 3 had copyright on the initial musical column in the attached table of household affairs among the musical household affairs of the first musical household affairs of Plaintiff 3, Defendant 1 and Defendant 3 as co-producer, Defendant 2 as co-producer from February 28, 2004 to April 30, 2004, and Defendant 1 as co-producer, Defendant 2 as co-producer, and Defendant 2, as co-producer, performing or performing the instant musical household affairs from June 13, 2004 to the present date. In full view of the overall arguments in the above written statements, Defendant 6, Eul, 9, 30, and 31, until September 2006, the company may not request Nonparty 2 to 9 non-party 2 to write it out in the attached list of the second domestic household affairs or to write it out in the attached list of the second domestic household affairs as non-party 2, which is almost the same as the first domestic musical column in the attached list of the domestic affairs.

As to this, Plaintiff 3 asserts that Defendant 1’s conversion of Defendant 1’s original musical work into another musical work as seen above constitutes an act infringing upon the author’s moral right of initial musical work and the author’s moral right of creation of a derivative work among the author’s moral right of initial musical work, but first, the author’s moral right is a right to prohibit the author from changing, deleting, deleting, and putting any change into his original work against his will. As such, it does not apply to the creation of an independent work, but to the creation of a new independent work, and the second right of preparation of a derivative work is also a right to create and use a new work without any similarity, independent of the original work. As such, Defendant 1 Company does not apply to the creation of a new work without any similarity with the original work, since Defendant 1’s moral right of creation of a new work from September 206 to the musical work of this case is also a right to create a musical work independently or independently from the original work of this case.

In addition, even if Defendant 1 Company maintains the title of some grains while it is different from the original musical household affairs of this case, the title of the work is merely merely merely the cover of the work, and cannot be deemed as the expression of ideas or emotions, and it does not infringe upon the copyright of the original musical household affairs, even if it is completely different from the original musical household affairs of this case.

As to this, Defendant 1 et al. asserts that Plaintiff 3 was allowed to use the domestic affairs in the first place of the attached list of household affairs.

According to the statement No. 2-3 of the plaintiff 3, there is no evidence to recognize that the plaintiff 3 permitted the use of the above family affairs beyond the above period to the defendant 1 company, etc. (the user who was authorized to use the above family affairs by the plaintiff 3 is a co-producer or a sole producer of the above family affairs, and thus, the defendant 1 company can invoke the right to use the above family affairs with the defendant 2's household affairs for the above period as well as the non-proof. Thus, the plaintiff 3 did not recognize that the plaintiff 3 permitted the use of the above family affairs to the defendant 1 company, etc. (the user who was authorized to use the above family affairs by the plaintiff 3 is a co-production or a sole producer of the above community affairs, so it is possible to invoke the right to use the above family affairs with the defendant 1 company.)

As to this, Plaintiff 3 asserted that Plaintiff 3 delegated Defendant 1 with the consent of Plaintiff 1 and 2 when entrusting Defendant 1 with the right to manufacture “on the basis of love”, and Defendant 1 Company did not obtain the consent, the delegation of Plaintiff 3’s authority is null and void. However, it is difficult to believe that Plaintiff 3’s entry of No. 21, which conforms to the assertion on the establishment of the conditions, is difficult, and there is no other evidence to acknowledge it.

Therefore, Defendant 1 and Defendant 2 are the producers and managers of the instant musical properties, respectively, and they are 204.

12. From September 31, 2006 to September 2006, Plaintiff 3’s right of performance was infringed upon Plaintiff 3’s right of performance among the author’s property rights in the above household affairs, by making Plaintiff 3 create the household affairs to their actors without obtaining permission to use the Plaintiff 3’s right of performance. However, Defendant 1, etc. cannot be said to have infringed upon Defendant 4’s right of performance during other period.

The facts that Defendant 4 consented to the production and performance of the instant musical group and participated in Defendant 1 and Defendant 3 as the main personnel in charge of the instant musical group, are as seen earlier. However, it is only limited to allowing Defendant 1 and Defendant 3 to use each part of the original musical group having the copyright, and it cannot be viewed as infringing Plaintiff 3’s copyright on the initial musical group as to the domestic musical group in the attached list, and there is no other evidence to acknowledge that Defendant 4 infringed on the right to performance of the instant musical group.

(2) Infringement of neighboring rights with respect to the exploitation of the musical community

Plaintiff 3 asserted that the Defendants infringed Plaintiff 3’s neighboring rights regarding the initial musical community by reproducing and reproducing almost the contents of Plaintiff 3’s musical community in performing the instant musical community, but the neighboring rights of the performer, etc. under Article 63 of the Act, etc. are the right to reproduce the performance itself, such as recording, video recording, or photographing it at a specific time, and does not have the right to other performances similar to the performance. Even according to Plaintiff 3’s assertion, the Defendants did not reproduce the musical community itself, and the Defendants did not infringe upon Plaintiff 3’s neighboring rights as the performer of Plaintiff 3 on the initial musical community.

F. Whether to recognize a prohibition claim

According to the above facts, although Defendant 1 and Defendant 2 read the instant musical work into the instant musical work from September 2006 to make it possible for them to learn by writing the instant musical work differently from the musical work, the said Defendants are producers or co-investments of the instant musical work, and they infringe upon Plaintiff 3’s copyright by using the first musical work written in the attached domestic work column in the attached domestic work column with the copyright from December 31, 2004 to September 2006. Thus, it is likely that Plaintiff 3’s copyright may be infringed upon by performing the instant musical work in the next musical work, while performing the musical work in the future.

Therefore, in order to prevent the infringement of copyright on the original musical column of the attached list on the household affairs, Plaintiff 3 may claim against Defendant 1, and Defendant 2, that the said Defendants do not use the original musical column of the attached list on the household affairs while performing the instant musical group.

However, as seen earlier, musical works can be used separately from musical works, such as musical, musical, and household effects. In light of the fact that the musical, musical, and each musical, musical, and each musical, musical, musical, and musical, musical, and each musical, musical, musical, and musical, musical, and each musical, musical, musical, and each musical, musical, musical, and cultural, musical, musical, and cultural, musical, musical, and cultural, musical, cultural, and cultural, musical, and cultural, cultural, cultural, and cultural, cultural, cultural, and cultural, cultural, cultural, and cultural, cultural, cultural, and cultural, cultural, cultural, and cultural, cultural, cultural, and cultural, cultural, cultural, and cultural, cultural, cultural, cultural, and cultural, cultural, cultural, and cultural, cultural, cultural, cultural,

G. Whether to recognize the claim for damages (1)

As above, from December 31, 2004 to September 2006, Defendant 1 and Defendant 2 infringed upon Plaintiff 3’s right of performance among the author’s property rights in the first musical household column on the attached list. Defendant 2 participated in the production and performance of Plaintiff 3 and the first musical household column. Defendant 1 Company is presumed to have been negligent in the infringement of the above right of performance, and thus, Defendant 1 and Defendant 2 should compensate Plaintiff 3 for damages caused by the infringement of the right of performance because it is presumed that Defendant 1 and Defendant 2 were negligent in the infringement of the above right of performance.

(2) The computation of the amount of damages (A) Plaintiff 1 and Defendant 2 obtained profits from Defendant 3’s copyright infringement and 52,640,00,00 won. Thus, Defendant 1 and Defendant 2 asserted that the amount of damages corresponding to the above amount of damages should be estimated as the amount of damages of Plaintiff 3 pursuant to Article 93(1) of the Act. However, there is no evidence to prove that Defendant 1 and Defendant 2 obtained the above amount of damages. (b) Article 94 of the Act recognizes a reasonable amount of damages in consideration of the purport of pleading and the result of examination of evidence when it is difficult to calculate the amount of damages pursuant to Article 93, even though the fact that the damage occurred, the court may determine the amount of damages at the discretion of the court by prescribing the same amount of damages by taking into account the purport of pleading and the result of examination of evidence. Accordingly, Defendant 1 and Defendant 2, on the record, cannot be calculated as the amount of damages corresponding to the above amount of damages under Article 94 of the Act.

According to the statement No. 17-1 of Eul, defendant 4, on January 28, 2004, to defendant 3 company on January 28, 2004.

5. From December 5, 2005, approval of the use of his own copyright (the copyright of each part of the music of this case) was made, and in return, it can be recognized that the agreement was made to receive 10% of the net profit accrued from the public performance of the music of this case, but the contract was made to receive 8,00,000 won as down payment, and there is no counter-proof; Defendant 1, and Defendant 2 did not have any counter-proof; the fact that the period of infringement of Plaintiff 3’s copyright is one year and nine months is more than that of each of the above items; in general, it is difficult for Defendant 1, Defendant 2, and Defendant 2 to say that the proportion of the domestic affairs in the musical community of this case is higher than that of each of the above items; in full view of the progress of infringement of the copyright of this case; and the frequency and performance results of the musical group of this case, it is reasonable to deem that Plaintiff 3’s infringement of the copyright of this case is 1,000,000 won.

H. Sub-committee

Therefore, Defendant 1 and Defendant 2, while performing the instant musical notes, shall not use the first musical column in the attached family register, and they are obligated to pay KRW 10,000,00 to each of the plaintiffs 3. Thus, the plaintiffs' assertion on the infringement of the plaintiffs' copyright against the defendants is justified only within the scope recognized above among the plaintiff 3's assertion.

5. Plaintiff 1’s assertion on infringement of service mark rights

Plaintiff 1 asserts that the Defendants’ performance of the instant musical service mark infringed the Plaintiff 1’s registered service mark right.

According to Gap evidence 11-1 and 2, the plaintiff 1 filed an application for service mark mark registration as to the mark indicating the attached service mark on August 15, 2005 with the designated service business on August 27, 2003, including the drama performance business, drama production business, musical performance business, musical production business, film performance business, film production business, etc., and completed registration as the registration number No. 117899 on July 15, 2005. In performing the musical properties of this case, the defendants performed the musical properties of this case and used the title "voluntary use of title" identical to the part of the text of the above registered service mark.

However, even in the case of using a mark identical or similar to another person's registered service mark, if it is not for the original function of the service mark, and it cannot be perceived as the use of the service mark, it cannot be said that the registered service mark's right was infringed (see Supreme Court Decision 2001Da79068, Jun. 13, 2003, etc.). The defendants used only to indicate the name or content of the musical work of this case in which they perform the above musical title as their musical work, and there is no evidence to recognize that the above musical work of this case was used to indicate the source of the musical work of this case, or that the above musical work of this case was actually indicated as the source of the musical work of this case.

Therefore, Plaintiff 1’s assertion on the infringement of service mark rights against the Defendants is without merit.

6. Judgment on the plaintiffs' abuse of rights and violation of the good faith principle

After Defendant 2 and 4 received remuneration from the plaintiffs at the time of the production of the original musical book in 1995 and delivered it, the plaintiffs did not deny the plaintiffs' right to performance during the performance of the plaintiffs. Based on the circumstances that the contractual relationship with the plaintiffs as to the right to performance of the above musical book and each text is not clear, the plaintiffs' right to performance is denied by denying the plaintiffs' right to performance of the above musical book in 9 years, or around January 2004, and the plaintiff 1 company's representative director and the non-party 10 who did not actually perform the musical book but did not jointly produce the musical book of this case with the non-party 10, or setting the musical performance right to the non-party 10 constitutes an abuse of rights. Thus, the exercise of rights is against the principle of good faith and constitutes abuse of rights.

The principle of trust and good faith under the Civil Act refers to abstract norms that a party to a legal relationship should not exercise a right or perform a duty in a manner that violates equity or trust in consideration of the other party’s interest. In order to deny the exercise of the right on the ground that it violates the principle of trust and good faith, it should have been provided to the other party or objectively viewed that the other party has good faith, and the other party’s exercise of the right against the other party’s trust should have become in a state that is not acceptable in light of the concept of justice (see Supreme Court Decision 2003Da18401, May 26, 2006, etc.).

However, as seen earlier, Defendant 2 and 4 completed the same as that of the plaintiffs, and permitted the use of the musical musical musical musical musical musical musical musical musical musical musical musical musical musical musical musical musical musical musical musical musical musical musical musical instruments, and the plaintiffs were able to hold a public performance of the musical musical musical musical musical musical musical musical instruments until May 199. Accordingly, the plaintiffs were able to hold a public performance of the musical musical musical musical musical musical musical instruments at least 50 times from 1995 to 199 (However, even though they participated in the musical musical musicalal musical instruments as above, they did not receive any additional remuneration after they agreed with the plaintiffs 1, and they did not receive any additional remuneration.), Defendant 2 and 4 did not intend to terminate the copyright-related relationship with the plaintiffs, and it did not constitute an abuse of rights in relation to the plaintiff 2 and 3's use of the musical musical musical instruments of this case, nor constitutes an abuse of rights in relation to the defendant 4 and 1, respectively.

Therefore, the plaintiffs' violation of the good faith principle against the defendant 2 and 4, and the abuse of rights is without merit.

7. Conclusion

Therefore, the plaintiffs 1 and 2's claims against the plaintiffs 3 against the defendant 1 and 2 are accepted within the scope of the above recognition, and the remaining claims against the plaintiff 3 and 2 against the defendant 3, the whole claims against the defendant 4, and all claims against the defendants of the plaintiff 1 and 2 shall be dismissed as they are without merit. The judgment of the court of first instance is just in conclusion. Thus, all appeals by the plaintiffs 1, 1, and 2 are dismissed as they are without merit. It is so decided as per Disposition.