In a case where Byung, working as the production team leader Eul in the production team Eul in the promotional video work chain operated by Gap, posted a promotional video product produced by Gap on his own's observation channel without Gap's permission, etc. and link it to Gap's Internet homepage operated by Eul without Gap's permission, the case holding that Byung's display of the above video product without Gap's consent constitutes an act infringing Gap's copyright, and Eul's intentional act or negligence is recognized, and Byung is liable for damages caused by the above infringement.

A’s promotional video production chain, which is operated by A, is a case in which C’s work as the production team leader in B, posted a promotional video product produced by A at the request of a local government, etc. on his/her own, without the Party A’s permission, without indicating A’s or B’s name, and links it on its Internet homepage.

Since the above video works fall under the video works stipulated in Article 2 subparag. 13 of the Copyright Act, in light of all the circumstances, including the fact that Byung made his own website and made business registration after the production of his own website, Byung had an external aim to publicize his/her ability to produce the video by posting the video works to the public without indicating the copyright holder of the video works, and the purpose of promoting Eul's ability to produce the video works is to promote Eul's ability to produce the video works, since Byung displayed the above video works without Gap's consent constitutes an act infringing Gap's copyright, and it is recognized that Byung's intent or negligence was also recognized, Byung is liable for compensation for damages caused by the above infringement.

Article 2 Subparag. 13, Articles 12, 19, 125(2), and 126 of the Copyright Act

Plaintiff (Law Firm Han, Attorneys Kim Jae-hee et al., Counsel for plaintiff-appellant)

Defendant

October 23, 2020

1. The defendant shall pay to the plaintiff 4,00,000 won with 5% interest per annum from December 11, 2019 to December 18, 2020, and 12% interest per annum from the next day to the day of full payment.

2. The plaintiff's remaining claims are dismissed.

3. Of the costs of lawsuit, 99% is assessed against the Plaintiff, and the remainder is assessed against the Defendant, respectively.

4. Paragraph 1 can be provisionally executed.

The defendant shall pay to the plaintiff 60 million won with 12% interest per annum from the day following the delivery of a copy of the complaint of this case to the day of complete payment.

1. The part recognizing the defendant's infringement on the plaintiff's work

(a) Occurrence of liability for damages;

Comprehensively taking account of the overall purport of the arguments in Gap evidence Nos. 1 and 1 and 2, the defendant worked as the production team leader at the "○○○○ Professionalization" operated by the plaintiff from July 1, 2016 to June 9, 2017, and the defendant was in charge of the production of videos, etc.; around January 9, 2017, the defendant, without the plaintiff's permission, posted public relations film content and equipment photograph (6 items, such as 12 promotion videos, etc. of △△△, 4, such as △△ Military Special Research and Development Zone, △△△△△△ Group, and 6 aerial photography photographs, etc. (hereinafter "the video of this case"), which were produced by the plaintiff on his own Pib channel at the request of △△ Group, etc.; hereinafter "the video of this case") without indicating the name of the plaintiff or ○○○○○○○, and linked them on its Internet homepage, etc., and it constitutes the video work of this case.

Meanwhile, the Defendant, around December 2016, received a proposal from the Plaintiff that “in the event of introducing a contract for production of videos, the Defendant would give a performance fee.” As such, the Defendant posted the instant video work for the purpose of promoting the Plaintiff’s ability to produce the videos, it alleged that there was no intention or negligence as to the infringement of copyright of the instant video work. However, the circumstances acknowledged by adding the overall purport of pleadings to the evidence and the statement in Gap evidence No. 1, i.e., the Defendant registered the business around December 2016 after its own website and around March 2017, and the Nonparty, who had worked as the Defendant, stated that the Defendant posted the instant video work on its website to consider the Defendant as an opportunity to display his personal ability. In light of the above, the Defendant, without indicating the copyright holder of the instant video work, posted the instant video work on its website and its website to externally promote its production by posting it as if it produced the instant video work. The primary purpose of the Plaintiff’s publicity and its secondary purpose can be acknowledged.

Therefore, the Defendant’s display of the instant video works without the consent of the Plaintiff, a copyright holder, constitutes an act infringing the Plaintiff’s copyright, and the Defendant’s intent or negligence regarding the said infringement is recognized. Therefore, the Defendant is liable for compensating the Plaintiff for the damages caused by the said infringement.

B. Scope of liability for damages

1) Property damages

A) The plaintiff's assertion

As it is difficult for the Defendant to understand the interests obtained by the above infringement, pursuant to Article 125(2) of the Copyright Act, the Defendant shall compensate for the amount equivalent to the amount which the Plaintiff would normally receive by exercising the copyright of the instant video work. The specific amount of damages is based on the price of the said video and image sales site (site name omitted), in the case of a video work Nos. 1 through 16, the minimum usage fee is 200,000 won per 10 seconds, and in the case of a video work Nos. 17 through 22, the user fee is 60,000 won per case, and the sum is 77,690,000 won per case. However, the Plaintiff claimed 50,000,000 won among them.

B) Determination

(1) Whether the amount of damages under Article 125(2) of the Copyright Act is calculated

Article 125(2) of the Copyright Act provides that, in cases where an author of author’s property right claims compensation from a person who has intentionally or negligently infringed his/her right for damages caused by such infringement, the amount equivalent to the amount ordinarily entitled to receive by the exercise of his/her right may be claimed as the amount of damages suffered by the author of author’s property right. In such cases, “the amount equivalent to the amount ordinarily entitled to receive by the exercise of his/her right” refers to the amount objectively equivalent to the amount that the infringer would have received by the author of author’s property right if he/she had obtained permission to exploit his/her work. Therefore, in cases where the author of author’s property right has entered into a contract for the exploitation of a work in a form similar to infringement and has received fees, barring any special circumstance, the amount of damages prescribed in the relevant service contract may be calculated on the basis of the amount which the copyright holder would normally receive by the exercise of his/her right (see, e.g., Supreme Court Decisions 9Da69631, Nov. 30, 20

The written evidence No. 5 alone is insufficient to recognize that the Plaintiff is entitled to usage fees of the amount (200,000 won per 10 seconds, per case, and 600,000 won per case) as alleged by the Plaintiff for the instant video works or similar video works at Lymat Image Korea Co., Ltd., and there is no other evidence to acknowledge otherwise. Furthermore, there is no evidence to acknowledge that the Plaintiff entered into a contract for the use of the instant video works in a form similar to the Defendant’s infringement, and that there is no evidence to acknowledge an amount equivalent to the amount that the Plaintiff would have been entitled to receive if the Defendant had obtained permission for the use of the instant video works. Therefore, it cannot be calculated in accordance with Article 125(2)

(2) Calculation of damages under Article 126 of the Copyright Act

Article 126 of the Copyright Act provides that the court shall recognize a reasonable amount of damages in accordance with Article 126 of the Copyright Act, even though the fact of the occurrence of damages is recognized, if it is difficult to calculate the amount of damages pursuant to Article 125 of the same Act, taking into account the purport of the pleading and the result of the examination of evidence. Ultimately, it is reasonable to deem that the case constitutes “when the fact of the occurrence of damages is recognized, but it is difficult to calculate the amount of damages pursuant

In light of the following circumstances which can be acknowledged by comprehensively taking into account the overall purport of the arguments as seen above, namely, the video works of this case are the images promoting local governments, hospitals, enterprises, etc., so it seems not easy for the Plaintiff to enter into a contract for the use of the video works of this case in general. There is no material that the Plaintiff actually entered into a contract for the use of the video works of this case. The Defendant appears to have aimed at publicizing the Plaintiff’s ability to produce the video works of this case, along with the purpose that the Defendant would have recognized the video works of this case as they were produced. Thus, the Plaintiff suffered considerable damages to the Plaintiff when entering into a contract for the use of the video works of this case with the Defendant for the same purpose. Considering that there was no material concerning the promotional profit or operating profit of the Defendant’s business acquired by posting the video works of this case on the website, and other various circumstances, including the Defendant’s purpose and background of infringement, form and degree of infringement, and infringement period of this case’s video works, the Plaintiff’s assertion is reasonable and reasonable.

2) Consolation money

According to the facts established above, the plaintiff is obviously in light of the empirical rule that the defendant posted the video works of this case on the defendant's website without the plaintiff's consent, thereby suffering from mental suffering due to infringement of the right of attribution among moral rights. Thus, considering the circumstances and circumstances surrounding the infringement, it is reasonable to determine the amount that the defendant is liable to compensate for to the plaintiff as KRW 1,50,000, and the plaintiff's assertion in excess is without merit.

3) Sub-decisions

Therefore, the defendant is obligated to pay to the plaintiff 4,00,000 won and damages for delay calculated by the ratio of 5% per annum from December 18, 2020, which is the date of the judgment of this case, to December 18, 2020, and 12% per annum from the following day to the date of full payment, as requested by the plaintiff, the delivery of a copy of the complaint of this case from December 11, 2019, as sought by the plaintiff.

2. The part rejecting the defendant's infringement on the plaintiff's work

A. The parties' assertion

1) The plaintiff's assertion

On July 20, 2017, the Defendant posted, on its website, the promotional video of △△△△△ (2 female of the Korean-style rural village 2), the promotional video of the △△△△ Park (2 female of the secret number 2 in the △△ Military), the video of the △△△△△△△△△△ council (1 female of the secret number 2), and the promotional video of the △△△△ council (2 female of the ▽△△△ Military reed field), which was made by the Plaintiff on its website without the Plaintiff’s permission, and infringed the Plaintiff’s copyright by placing it on the Brb channel on September 14, 2017. Accordingly, the Defendant is obliged to pay to the Plaintiff part of the amount of property damages calculated pursuant to Article 125(2) of the Copyright Act and the consolation money10 million won.

2) The defendant's assertion

The video works posted by the defendant on the website, etc., regardless of the plaintiff's project, are the video works taken by the defendant as a drone owned by the defendant.

B. Determination

The evidence presented by the Plaintiff alone is insufficient to recognize that the video works posted by the Defendant on the Plaintiff’s website are the same as the above video works on the Plaintiff’s assertion, or that they are compilations thereof, and there is no other evidence to acknowledge this. Therefore, this part of the Plaintiff’s

3. Conclusion

Therefore, the plaintiff's claim is justified within the scope of the above recognition, and the remaining claims are dismissed as it is without merit. It is so decided as per Disposition.

[Attachment 1] Omitted

[Attachment 2] Omitted

Judges Ansan