[1] Where an original is reproduced in the course of photographing, recording, etc., the standard to determine whether there exists a substantial similarity between the original and the new work

[2] The standard for determining whether a work already made public under the former Copyright Act is made consistent with a fair practice to the extent justified, and the scope of allowing free use for commercial purposes

[1] In a case where an original is reproduced in the course of photographing, recording, etc. as it is, in light of the nature, content, overall composition, etc. of a new work, if the original is used as an incidental to the photographing, recording, etc. of a subject matter in which the main expression is displayed in a new work, and it is not equivalent to the degree that its quantitative and qualitative weight or importance is insignificant, but rather, if the creative expression form of the original is apparent in a new work, it should be deemed that there exists substantial similarity among them.

[2] Article 28 of the former Copyright Act (amended by Act No. 10807, Jun. 30, 2011) provides that a work already made public may be quoted for news reports, criticism, education, research, etc., within a reasonable scope. Whether a work is made consistent with a fair practice within a reasonable scope shall be determined by comprehensively taking into account the purpose of the quotation, nature of the work, the contents and quantity of the work quoted, the method and form of containing the obscenity, the general concept of the reader, and whether the demand for the original work is replaced. In such a case, although the use for profit is not necessarily a non-profit use, the scope of free use is considerably narrow compared to the use for non-profit purposes.

[1] Article 136 (1) (see current Article 136 (1) 1 of the former Copyright Act (Amended by Act No. 10807, Jun. 30, 201) / [2] Articles 28 and 136 (1) (see current Article 136 (1) 1) of the former Copyright Act (Amended by Act No. 10807, Jun. 30, 201)

[2] Supreme Court Decision 97Do2227 decided Nov. 25, 1997 (Gong1998Sang, 178) Supreme Court Decision 201Do5835 decided Feb. 15, 2013 (Gong2013Sang, 533)

Defendant 1 and one other

Prosecutor

Law Firm Han-chul, Attorney Park Jong-young

Seoul Western District Court Decision 2012No260 decided August 23, 2012

The judgment of the court below is reversed, and the case is remanded to the Seoul Western District Court Panel Division.

The grounds of appeal are examined.

1. The court below held that the act of posting the pictures (hereinafter referred to as "the pictures of this case") on its website by the defendants, who are engaged in the so-called so-called Pototobal business to intermediate the transfer and use of pictures on the Internet, did not constitute copyright infringement upon the copyright infringement on the part of the court below, on which the work (hereinafter referred to as "the copyrighted work of this case") in the decision of the court below, which set up the supporting phrase "Bewk" widely used at the time of the Korea-Japan World Cup 2002.

A. The scope of protection is limited in light of the appeal history of this case’s work, the social and cultural background of providing collective support to the people, and its commercial and functional nature. In addition, in light of the location, size, importance, etc. of the instant work in the instant pictures, it is merely a indirect and incidental use, and it is difficult to directly obtain the creative expression form of the instant work from the instant pictures. Moreover, the instant pictures did not directly infringe on the commercialization business carried on by the copyright holder of the instant work.

B. The Defendants’ permission of transfer and use of photographs play the positive role in saving information search costs and facilitating prompt and prompt transaction of photographs. Posting photographs on the website does not have any substantial economic benefits that the Defendants obtain, and posting photographs containing another’s work on the Defendants’ website is the most effective way to deliver information on photographs to the users. In addition, even if the last use of photographs is uncertain at the posting stage of the website, if the posting itself constitutes copyright infringement even if the last use of the photographs is in uncertain condition, there may be adverse effects such as transfer and use of photographs by compelling the users to make advance payment of the price for the use of the works included in the photographs prior to the conclusion of the contract for permission of transfer or use.

2. Ultimately, the lower court’s determination is summarized as follows: (a) the instant pictures do not recognize the substantial similarity with the instant copyrighted works; or (b) the reproduction, etc. of the instant copyrighted works, etc. following the Defendants’ posting on the website, etc. of the instant copyrighted works, which are published under Article 28 of the former Copyright Act (amended by Act No. 10807, Jun. 30, 201; hereinafter the same shall apply).

However, we cannot accept the above judgment of the court below for the following reasons.

A. First, we examine the substantive similarity between the instant pictures and the instant copyrighted works.

(1) In cases where an original work is reproduced in the course of photographing, recording, etc., the nature, content, and overall composition of a new work should be considered as having substantial similarity among them, if the original is used as incidental to the photographing, recording, etc. of an object in which the main expression is displayed in a new work, and it is not equivalent to the extent that its quantitative and qualitative weight or importance is insignificant, but rather, if the creative expression form of the original work in a new work becomes apparent in a new work, it shall be deemed that there is a substantial similarity.

(2) We examine the above legal principles and the evidence duly admitted by the court below.

The instant copyrighted works consisting of the widely known supporting phrases at the time of the World Cup 2002, “Be Red Co., Ltd.”. The creative identity of the instant copyrighted works itself expresses dynamic and dynamic support by using traditional ugraphs. However, some of the pictures of this case (hereinafter “instant infringed photographs”) were located in the center of the instant copyrighted works in size and form with which the original form of the instant copyrighted works was fully or most recognizable, and their creative identity was changed as they were, in light of the symbol on the instant copyrighted works’ creative elements and the character, content, overall degree, etc. of the instant infringed photographs, the instant copyrighted works seem to have been seen as one of the main objects of the instant copyrighted works that expressed the dynamic and dynamic character of the instant copyrighted works. In short, as long as the instant copyrighted works were in the form of the instant copyrighted works, the instant copyrighted works could have a considerable similarity with the instant copyrighted pictures that were expressed in the original form of the instant copyrighted works.

B. Next, we examine whether the reproduction, etc. by the posting of the instant infringing photographs constitutes “a quotation of works made public” under Article 28 of the former Copyright Act.

(1) Article 28 of the former Copyright Act provides that a work already made public may be quoted for news reports, criticism, education, research, etc., within a reasonable scope consistent with fair practices. The determination of whether a work is properly made within a reasonable scope shall be made by comprehensively taking into account the purpose of quotation, the nature of the work, the contents and quantity of the quoted work, the method and form that contains the cited work, the general concept of readers, and whether the demand for the original work is replaced. In this case, although the use for profit-making purposes is not necessarily a non-profit use, the scope of free use is considerably narrow compared to the use for non-profit purposes (see, e.g., Supreme Court Decisions 97Do227, Nov. 25, 1997; 201Do5835, Feb. 15, 2013).

(2) We examine the above legal principles and the evidence duly admitted by the court below.

The Defendants posted photographs on the website according to the commission of the photographers, assigned them to those who wish to use them, and distributed the profits therefrom to the photographers. As such, the Defendants’ act of posting the instant infringed photographs on the website was for profit-making purposes.

In addition, the instant copyrighted work is a kind of work of art in which the aesthetic expression according to the author’s creative expression is revealed in its nature. In the case of the instant infringing photographs, insofar as they were made by photographing the instant copyrighted work that symbolizes the World Cup’s support culture without any special modification, it cannot be deemed to have obtained any separate purpose or character beyond the mere alternative level of the instant copyrighted work. Furthermore, as seen earlier, the instant infringed photographs are located at the center of the photograph in size and form with which the original form of the instant copyrighted work is visible or most recognizable, and accounts for a quantitative and qualitative proportion. In addition, the instant infringed photographs are deemed to have been transferred to the users of pictures that have shapes the World Cup atmosphere for the purpose of transferring it with compensation or allowing the use thereof to be used, or, as seen earlier, have taken a model on which the instant copyrighted work widely known as one of the representative representations of the World Cup’s support culture was worn out, and thus, can be seen as having been included in the permission to exploit the copyrighted work on the website without permission of the Defendants.

Furthermore, even if the defendants are merely to intermediate the transfer of photographs or the authorization agreement for use, as long as the defendants act to reproduce the works of others directly included in the photographs in the process together, it should be noted that there is no infringement of copyright. On the contrary, it is unreasonable to see whether all the copies posted on the website regardless of whether they include another person's copyrighted works, and whether they are authorized to use the copyrighted works solely under the responsibility of the photograph users.

Comprehensively taking account of the above circumstances, it is difficult to view that the instant copyrighted work was cited from the infringement photographs posted by the Defendants on the website in compliance with the fair practices to the extent reasonable.

C. Nevertheless, the court below held that all of the instant pictures were not recognized as having substantial similarity with the instant copyrighted works, or the instant copyrighted works were quoted in conformity with fair practices to the extent justified, without individually comparing and comparing with the instant copyrighted works as to the substantial similarity between the instant copyrighted pictures and the creative copyrighted works. This decision is erroneous by misapprehending the legal principles on copyright infringement.

3. Conclusion

Of the instant pictures of the lower judgment, the part concerning the pictures recognized as having substantial similarity with the instant copyrighted works should be reversed. Since this part is in the relation of a blanket crime with the part not recognized as having the said substantial similarity among the instant pictures, the entire judgment of the lower court is reversed.

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-young (Presiding Justice)