In a case where Party A, who operates the performance planning company, proposed Party B to be defective in the performance planning work of Company B with Company B, accepted Party B’s proposal, and performed the artistic director’s and internal-free work of Company B, and thereafter Party A claimed that Party B’s work constitutes an occupational work or joint work of Company A and Party B, and sought a injunction against infringement of copyright, the case holding that Party A’s work cannot be deemed as a joint work of Company B or Party B.

In a case where Gap, who operates a performance planning company, proposed that Eul had defects in the performance planning work of ethical work and ethic work of ethic work of ethic work of ethic work and ethic work of ethic work of ethic work of ethic work of ethic work of ethic work of ethic and ethic work of ethic work of ethic work of ethic work of ethic work of ethic work of ethic work of ethic work of ethic work and ethic work of ethic work of ethic work of ethic work of ethic work of ethic work of ethic work of ethic work of ethic work of ethic work of ethic work of ethic work of ethic work of ethic work of ethic work of ethic work.

Article 2 Subparag. 1, 2, 21, 31, 9, and 123 of the Copyright Act

Plaintiff (Law Firm Gangnam, Attorneys Cho Jae-in et al., Counsel for the plaintiff-appellant)

Defendant (Law Firm Gain, Attorneys Park Jong-eng, Counsel for defendant-appellant)

February 24, 2016

1. All of the plaintiff's claims are dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The defendant shall not engage in any act that infringes on the plaintiff's copyright by means of public performance, etc. on the works listed in the attached list. The defendant shall implement the procedure for cancelling the registration of the copyright registered in the attached list with the Korea Copyright Commission

1. Basic facts

A. The Plaintiff operates the “○○○○ Arts Entertainment”, a performance planning company, and the Defendant is working as a performance planning company and as a performance-free shop.

B. Around February 2012, the Plaintiff sought the Defendant, who had operated the Hare Private Institutes (△△△) in front of the Dobong-gu Seoul Office, and proposed that the Defendant did not perform the duty of performing the performance of the performance of the performance of the performance of the performance of the performance. The Defendant accepted the said proposal from 2012 to 2014, and performed the artistic supervision and duties of the art supervisor of the “Tree” and “Se and Light Sound” (hereinafter “the Lere Works of this case”).

C. On May 8, 2015, the Defendant sent a letter to the Plaintiff, stating that “Tree” was an infringement of the Defendant’s copyright by performing the “Tree” without permission of the Defendant, the copyright holder, and thus, the Defendant demanded explanation. On June 2, 2015, the Defendant filed for copyright registration with the Korea Copyright Commission for copyright registration of the instant relics and completed copyright registration with the same content as the attached list.

[Reasons for Recognition] : Each entry of Gap evidence Nos. 2 through 5, 7, and Eul evidence No. 1 (including each number, if any, if any; hereinafter the same shall apply), and the purport of the whole pleadings

2. Summary of the parties' arguments

A. The plaintiff's assertion

Since the instant creation works were written by the Defendant as the Plaintiff’s employee, their copyright belongs to the Plaintiff pursuant to Article 9 of the Copyright Act. Even if the instant creation works do not constitute the Plaintiff’s sole works, the said works constitute at least joint works of the Plaintiff and the Defendant. However, the Defendant completed the registration of copyright of the instant creation works, which is an infringement of the Plaintiff’s copyright on the instant creation works. Accordingly, the Plaintiff sought suspension of copyright infringement and necessary measures against the Defendant with the same content as the written claim.

B. Defendant’s assertion

The Plaintiff and the Defendant did not have an employment relationship between the Plaintiff and the Defendant as a result of the performance planning and franchise-related relationship, since they did not have an employment relationship between the Plaintiff and the Defendant, they did not constitute an exclusive work of the Defendant, not an occupational work. In addition, the Plaintiff merely offered a part of ideas for the creation of the instant relics, may not be deemed as a joint author of the instant relics.

3. Determination

A. Whether the instant resort works constitute an occupational work

Under Article 9 of the Copyright Act, in order for a copyright to be granted to a corporation, etc. as an occupational work pursuant to Article 9 of the Copyright Act, ① a corporation, organization or other user plans to make works, ② a person engaged in works such as a corporation, ③ a work shall be made out in the course of business, ④ a work shall be made public in the name of the corporation, etc., and ④ a work shall be made public in the name of the corporation, etc.

According to the evidence evidence Nos. 1, 6, 7, and 11, the monthly salary for the defendant from March 2, 2012 to May 2013 in the wage ledger prepared by the plaintiff is 1.1 million won, and the plaintiff paid to the defendant a total of 4,43 million won over 35 times from March 22, 2012 to May 16, 2013, the plaintiff paid a total of 1.1 million won each over 12 times; the plaintiff paid the defendant a premium on behalf of the defendant from June 2, 2012 to May 2013; and the fact that the defendant did not have a name that the defendant entered an artistic supervision and supervision of the 000 art management unit and the ○○○○ Anmp.

그러나 앞서 든 증거에 의하여 알 수 있는 아래와 같은 사정들, 즉 ① 원고가 작성한 위 급여대장은 추후에 회계처리·세금신고 등을 위한 목적으로 작성된 것으로 보이는 점, ② 원고가 피고에게 지급한 위 4,430여만 원은 공연 준비비용, 공연수익 배분금, 원고 아들의 발레 레슨비용 등의 명목으로 지급된 것으로 보이고, 원고가 지적하는 110만 원씩 지급된 부분도 그 지급 횟수와 시기(2012. 5. 19.부터 2013. 5. 16.까지 불규칙적으로 총 12회 지급된 것에 불과하여 원고가 주장하는 피고의 고용기간이나 원고가 작성한 위 급여대장의 기재와 들어맞지 않는다) 등에 비추어 볼 때 피고에 대한 월 급여로 지급된 것이라고 단정하기 어려운 점, ③ 원고가 운영하는 ○○○예술매니지먼트는 별도의 사무실과 일상적인 업무가 있는 것은 아니었고, 원고가 공연을 섭외하여 그 일정이 잡히면 피고가 무용수와 스텝진을 구성하여 공연을 한 후 원·피고 사이에 그 비용과 수익 등에 관한 정산이 이루어지는 식으로 공연 업무를 한 것으로 보이는 점(이와 같은 업무 과정에서, 원고가 피고 대신 납부한 4대 보험료도 원·피고 사이의 정산에 반영되고, 피고가 대외활동을 위하여 앞서 본 것과 같은 명함을 사용하였을 가능성도 엿보인다), ④ 원·피고 사이에 근로계약서가 작성된 바가 없고, 원·피고가 2014년경 더 이상 공연 업무를 같이 하지 않게 될 무렵에도 퇴직금 지급 등 고용관계 종료에 따른 정산을 하였다는 사정도 보이지 않는 점 등을 종합하여 보면, 위 인정 사실만으로는 원·피고 사이에 고용관계가 있었다고 인정하기에 부족하고 달리 이를 인정할 만한 증거가 없다.

Therefore, the plaintiff's assertion of work on the premise that there was an employment relationship between the plaintiff and the defendant is without merit.

B. Whether the instant resort works constitute a joint work of the original and the Defendant

Where two or more persons have participated in the preparation of a work, only the person who has contributed to the creative expression itself, and the person who has not contributed to the creative expression does not become the author of the work, even though he participated in the preparation of the work by providing ideas, materials or necessary materials, etc. (see Supreme Court Decision 2007Do7181, Dec. 10, 2009, etc.).

In light of the above legal principles, it is insufficient to recognize that the Plaintiff contributed to the form of creative expression of the instant relics in excess of participating in the process of planning, production, and performance of the instant relics by itself in health stand, Gap 3, 8, and 10, and there is no other evidence to acknowledge this otherwise.

Therefore, the plaintiff's assertion of joint works is without merit.

4. Conclusion

Therefore, the plaintiff's claim of this case based on the premise that the plaintiff is the copyright holder of the Lered works of this case is all dismissed. It is so decided as per Disposition.

[Attachment] Copyright List: Omitted

Judges Lee Tae-soo (Presiding Judge) (Presiding Judge)