저작권법상 패러디의 공정이용 항변에 관한 고찰

Abstract

The primary goal of this paper is to show how the Korean judiciary defines parody and how parody is being protected by the copyright law through an analysis of a variety of precedents in developed country. Also, this paper talks about the limitations of the current copyright law in protecting parody and suggest some solutions to this issues. Parody is considered ‘fair use’ under the copyright law and is therefore considered lawful. The risk of infringement arises when the parodist extracts certain copyrighted elements of the original work. Thus, it has to keep in mind that parody is a form of limited criticism, may supply a part of demand for the original work, and does not always ridicule or criticize the original work. Accordingly, the fair use analysis for parody purpose must be taken into account in order to determine which act in terms of parody falls within a scheme of fairness. Parody is recognized as a form of criticism and commentary. In light of the four factors used to determine fair use for the purpose of parody as follows: Purpose and character; commercial or educational: noncommercial parodies are generally given more protection as fare use under this first factor. This criterion analyzes the degree of transformation accomplished by the new work by determining whether the new work has a different purpose or different character than that of the original copyrighted work. In Campbell case, the US Supreme Court held that the parody’s “transformative” character is more important than its commercial purpose. Nature of the work copyrighted - this factor has been said to carry little weight in parody situations, “since parodies almost invariably copy publicly known, expressive works”. Amount and substantiality – with parodies, a fairly extensive use of the work is permitted. Copying is considered in relation to parodic purpose – a parodist can copy as much as is needed to “conjure up” the original. Potential effect on the market – it is understood that an effective parody “may be so good that the public can never take the original work seriously again”. Thus, with parodies, the possibility of destroying the market for the original work is not measured. Instead, what is analyzed is the potential of the parody to fulfill the market demand of the original work. Parodies are transformative works; they are new works, which are not market substitutes for the original work. A valid parody is a defense against liability; however, unauthorized copying is still copyright infringement. Therefore when making and marketing a parody work, users should always be mindful of who may take offense.