골프코스의 창작성과 가상공간에서의 이용-서울고등법원 2024.2.1 선고 2022나2000485 판결을 참고하여-

Abstract

Art works such as literature, music, and art rely heavily on the author's personality, so there is a lot of room for creativity to be recognized, while functional works such as figures and design drawings must be judged for creativity except for areas that are bound to be expressed in that way, so there will be less room for the author's personality to be exercised. However, although the difference in characteristics related to the individuality of artistic and functional works may lead to a difference in the part that judges creativity, it does not act as a criterion for judging creativity. The creativity of all works should be recognized if they have their own individuality without copying others, and even functional works, it is reasonable to apply the same standards to areas where human thoughts and emotions are expressed independently. In the case of the golf course covered in this case, creativity cannot be recognized if it consists of only parts that anyone can express, but if creativity is denied even if its own characteristics distinct from other golf courses are embodied through the creator's individual expression, all real-world golf courses will lose their protectability as works. In this context, this paper critically analyzes the court's judgment and presents its own opinion on the criteria for judging the creativity and substantial similarity of the golf course.