패션디자인의 저작권법에 의한 보호 방안에 대한 연구

Abstract

The concept of ‘applied art’ is contrasted with ‘fine art.’ Applied art includes wide range of arts applied to useful articles, such as an ornament, which is aesthetic creature itself, or a furniture, which an aesthetic creature is combined with useful article, fashion design and so on. If applied arts are cumulatively protected by design protection law and copyright law, there is a problem that a useful article can be monopolized for a long time by copyright, which may hinder the development of industrial design. One of method to solve this problem in Korea, China, and the United State etc. there is ‘a requirement of separability’ from the useful aspect of useful article to be protected by copyright. The requirement of separability has been originated from U.S. precedent and its copyright law. According to U.S. copyright act, a design of a useful article can be protected by copyright as artistic works if those features can be physically or conceptually separated from, and are capable of existing independently of, the utilitarian aspects of the article. Recently, U.S. supreme court ruled the copyrightability of cheerleader's uniform in Star Athletica, L.L.C. v. Varsity Brands, Inc. case. It is regarded that this U.S. Supreme Court decision gave the unified standard of separability which have been decided with various standards in lower court and unify the criteria of separability to conceptual separability test. It is expected that this conceptual separability criteria will affect to the segregation criteria of our country. However, the criteria of separability used to decide the copyrightability of useful article is not clear and causes a lot of confusions. From early in Europe, ‘applied art’ has been cumulatively protected by the design protection law and the copyright law. To solve the problem of long protection by cumulative protection with copyright law and Design protection law, high level standard of creativity for protection of copyright has been used to ‘applied art’ than ‘fine art.’ However, in Germany, there was a change from the previous precedent that the standard of creativity of ‘applied art’ should be higher than ‘fine art’ to the new criteria that there is no difference in creativity standard between ‘applied art’ and ‘fine art.’ Recently appeal court In Japan, it was decided by the same creativity standard of German court for applied art. Therefore, the requirements for high standard of creativity in copyright recognition of ‘applied art,’ which is used to solve the long protection of ‘applied art’ by cumulative protection by copyright law and design protection law in Europe, are also challenged. Both of the high standard of creativity for recognition of ‘applied art’s copyrightability, which was used formerly in Korea and still used in China, Europe etc., and the separability test for differentiate copyrightable ‘applied art’ used in U.S.A., China and Korea have a problem that it require additional requirements to the basic definition that copyright work is that copyright work is “a creative work that expresses human thoughts and emotions.” Both of high standard of creativity and separative test are used to solve cumulative protection problem, but it is causing much confusion. Thus, the additional separability requirement for protection of fashion design with copyright make difficulty for uninformative definition of copyrightable subject matter. The theory of separability requirement of U.S.A should be used for restriction of copyright protection scope due to functional property of material.