[1] Where a photographer takes photographs showing his/her face and other physical features recognizable as a specific person by social norms with the consent of the photographer, the standard for determining whether to obtain the consent to disclose the photograph, and the person who bears the burden of proving that the photographer’s consent is within the scope permitted at the time of the consent to make the photograph (=the photographer or the publisher)

[2] The case affirming the judgment below holding that Gap infringed Eul's portrait right, in case where Gap taken a photograph of two copies of his model Eul at the Nudrid photographing conference held by the branch of the Korean Association of Nudridos, and one of them posted a photograph at the Internet site of the Association that can be perused by anyone at the time of membership registration procedure, and other one was posted on the portal bulletin board that is irrelevant to the Association and made it available for perusal by anyone on the site

[1] A person who intends to photograph or disclose another's face and other photographs showing physical characteristics recognizable as a specific person by social norms shall photograph the photographs with the consent of the person subject to the photographing. Even if the consent of the photographing is obtained, the person subject to the photographing shall also obtain the consent of the person subject to the photographing, in full view of various circumstances, including the motive and circumstances leading up to the consent of the photographing, the purpose of the consent of the photographing, transaction practices, the party's knowledge, experience and economic status, the balance between the received benefits, the method of publication at the time of photographing, the foreseeable of the method of publication at the time of photographing, and the possibility that the party would have agreed to other contents at the time of the consent of photographing, and if the photographer intends to make the photographing beyond the scope deemed to have been permitted in light of social common sense and transaction norms. In such cases, the person subject to the photographing shall bear the burden of proving that the photograph obtained the consent of the person subject to the photographing, or that the disclosure within the scope permitted by the person subject to the photographing at the time of the consent to the photographing.

[2] The case affirming the judgment below holding that Gap's act of posting Eul's photograph as well as Eul's photograph disclosed at the Internet bulletin board which can be freely perused by unspecified majority, on the ground that Eul's photograph was exposed to Eul's sound and conspiracy, and one of them was posted on the Internet homepage at the time of membership registration procedure, and other one was posted on the portal bulletin board which is unrelated to the Association and made it available for public perusal by the relevant website member, in case where Gap took photographs of Eul's photograph at the nudic photography screen screen held by the branch of the Korean Association of Nudrid Association, and Gap did not have any effort to obtain Eul's consent as to publication by the above method, and Gap did not request Eul to delete the above photographs from the Internet website, and the other one was rejected, and the above photograph was merely a 60th model of tort.

[1] Article 10 of the Constitution, Article 750 of the Civil Act, Article 288 of the Civil Procedure Act / [2] Article 10 of the Civil Act, Article 750 of the Civil Act

Plaintiff (Law Firm Dao, Attorneys Kim Jae-soo et al., Counsel for the plaintiff-appellant)

Defendant (Law Firm Hao, Attorneys Park Ho-woo et al., Counsel for the defendant-appellant)

Suwon District Court Decision 2010Na2696 decided November 11, 2010

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

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

1. Any person has a right not to have his/her face and other physical characteristics recognizable as a specific person by social norms taken, taken or disclosed without permission, or used for profit. Such portrait rights are constitutional rights guaranteed by the first sentence of Article 10 of the Constitution of Korea (see Supreme Court Decision 2004Da16280, Oct. 13, 2006, etc.).

Therefore, a person who intends to photograph or disclose a photograph showing another person's face and other physical features recognizable by social norms shall photograph the photographer with the consent of the photographer. Even if the person has obtained the consent of the photographer, considering various circumstances, such as the motive and circumstance leading up to the photographer's consent, the purpose of the photographer's consent, transaction practices, the party's knowledge, experience and economic status, balance of the received benefits, whether the public disclosure method at the time of the photographing is possible, and whether it is anticipated that the party would have made any other agreement with the photographer at the time of the consent of the photographing, if the photographer intends to make the photographer beyond the scope deemed to have been permitted in light of social common sense and transaction norms. In such cases, the person who has taken the photographer's consent, or the burden of proof that the photographer's consent was within the scope permitted at the time of the disclosure of the photographer's consent is within the scope of the consent.

2. A. According to the reasoning of the lower judgment, the lower court found the following facts based on the adopted evidence: (a) the Plaintiff entered into a verbal contract with Nonparty 1, the president of the Korea Nudrid Association ○○○○ Branch; (b) held on June 7, 2009 at the above branch for four hours from the “2009 Modrid Film Association” which was held on June 7, 2009; (c) the Defendant was exposed not only to the Plaintiff’s negative body and conspiracy, but also to the Plaintiff’s face, taken a photograph of the title “crybine” and “90%,” which appear in the Plaintiff’s face (hereinafter referred to as the “the instant photograph”), and (c) the Defendant did not request the Plaintiff to delete the pictures from the Internet website for a considerable period of time on which anyone can peruse them; and (d) the Defendant did not request the Plaintiff to delete them from the Internet website.

B. In light of the above facts, the court below determined to the effect that (i) the Plaintiff could have suffered a sense of sexual humiliation even if the instant pictures were disclosed to an unspecified number of unspecified persons in light of the degree of exposure; (ii) the Plaintiff was unable to anticipate his/her balone photograph’s tool or method of expression; and (iii) the Plaintiff could have anticipated that the instant pictures were posted on the balone of the balone website, which is entirely irrelevant to the Korea Nudrid Association, which was a party to the model contract; and (iv) the copyright of the balone photograph under Article 35(4) of the Copyright Act would have been freely obtained the Plaintiff’s consent in using the balone photograph to protect the right of portrait’s portrait, even if the pictures were taken by the Plaintiff with the Plaintiff’s consent, and thus, it would be reasonable to view that the Defendant did not freely have obtained the Plaintiff’s consent to the unlawful acts, as well as the Defendant’s consent to the instant pictures, even if they were to have been removed from the Plaintiff’s Internet bulletin.

C. In light of the aforementioned various circumstances, the lower court’s aforementioned determination is justifiable in light of the aforementioned legal principles, and there were no errors by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal doctrine on personal rights or copyright, or by omitting judgment, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on personal rights or copyright.

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

Justices Park Poe-young (Presiding Justice)