실용품의 저작물성 판단 시 예술성 요건에 관한 고찰 - Brompton Bicycle Ltd v. Chedech/Get2Get 사건을 중심으로 -

Abstract

Applied art works, which are useful articles produced in large quantities in industry, are recognized not only for the protection of the Design Protection Act but also for the protection under the Copyright Act. Applied art is recognized as a work to be protected, and this can be seen as a natural result required by the characteristics of modern industries, where art works tend to be combined with useful articles, but if the boundaries between pure and applied art become ambiguous, problems may arise. Under the Korean copyright act, originality recognized apart from the articles is required to be protected as an applied art work, and the concept of originality recognized apart from the articles is similar to the separability test of the United States. According to the court decisions in the U.S., useful articles were recognized as applied art works when they had their own aesthetic value, but in recent case about copyrightability of bicycle in Europe, the court ruled that the copyright of useful articles should be judged only by their originality. The court explained that since aesthetic value is subjective effects felt by the audience and is not objectively identified, originality should be recognized if the subject matter reflects the personality of its author, as an expression of his free and creative choices unrelated to aesthetic value. However, in order to that useful acticles to be protected like works of art, it they meet the fundamental requirements of art works, and in this context, artistic quality is emerged. However, there is still criticism that the standards for artistic quality are not clear in the court decisions and copyright act as well. In the target judgment, it was judged that the copyrightability of useful articles should be judged expression of creator’s free and creative choices unrelated to aesthetic value, the artistic value as a work of art will have to be considered. This paper intends to present a new perspective on the artistic quality by applying the concept of an object of modern art to interpret artistic quality.