영상저작물의 표절에 관한 연구

Abstract

Plagiarism is defined as the wrongful appropriation or stealing and publishing another's thoughts, ideas, or expressions and claiming that they are your own. Although plagiarism can constitute copyright infringement, the number of plagiarism cases is increasing in the motion picture industry. But some lack of uniformity prevails in judicial application of the substantial similarity test. In essence, courts differ over the subject matter to which the test applied. The application of different approach will frequently affect the outcome of the case, for any copyrighted literary work is likely to contain some, if not all, of these individually unprotectable elements. Under one view, substantial similarity is judged with respect to the whole of the copied portions of the plaintiff's work, including portions that viewed in isolation might not be eligible for copyright. This approach is called total concept and feel test and such an analysis treats the selection and sequencing of theses elements, perhaps unprotectible in isolation, as though they were a copyrightable compilation. Under another view, the uncopyrightable elements of copied material are first removed from consideration. Such elements include facts, ideas, and 'scènes á faire'-trite, stock scenes or treatments of facts and ideas. This is dissection test and removing unprotectible elements prior to the substantial similarity of expression test would preclude copyright protection for factual compilations containing an innovative selection or arrangement of elements because each element would be eliminated and nothing would be left for purposes of determining substantial similarity. This article shows two-step-test for the substantial similarity in motion pictures. The first step is total concept and feel test to consider the whole of the copied portions of the plaintiff's work. Even if elements are found unprotectible, they should not be eliminated from the substantial similarity analysis. Because the unprotectible elements can constitute such total composition as to be subject to protection under the copyright laws. The whole becomes substantially greater than the sum total of its parts. The second step is dissection test to eliminate unprotectible part from similar elements between two works. If it is determined that the defendant used the unprotectible elements, then no copyright infringement can be found. But if the works are deemed substantially similar, then the court should consider whether there is an innovative arrangement of elements. If substantial similarity is found in an innovative arrangement, then copyright infringement will be established even though the copyrighted work is composed of unprotectible elements. This test is appropriate to find comprehensive-nonliteral-similarity between the works and it will be more efficient way to find plagiarism and copyright infringement of motion pictures and other audiovisual works.