연기도 무용, 춤과 같이 저작권 보호의 대상인가 - 영화 및 TV 등 영상물의 연기를 중심으로 -

Abstract

In 2015, for the first time, The United States Court of Appeals for the Ninth Circuit held that an actor could possibly claim a copyright for his performance in a film. However, due to the backlash from the academic and film industry, the court revisited the case en banc and held that actor had no copyright claim in his performance. Meanwhile, recently in Korea, the copyright for the traditional dance, “Samgomu”, has became controversial after an K-pop idol group’s performance at TV show, and the Supreme Court has clearly held that the choreography of popular songs may be established as a work in Copyright Act and have copyright protection under Copyright Act. In South Korea, not only the ‘artistic dane’, but also the ‘choreography’ or ‘dance’ of pop singers or dancers are recognized as a ‘work’ under the Copyright Act and the court. Then, the acting that creatively combines and arranges human body movements, gestures, facial expressions, and accents or tone of voice should be recognized as a ‘work’ under the Copyright Act, similar to dance or choreography? The Copyright Act aims to contribute to the improvement and development of culture and related industries by protecting the rights of copyright holders for creative works expressing human thoughts or emotions, and promoting fair use of works. In order to be recognized as a ‘work’ under the Copyright Act, first of all, it should have “creativity” that includes the originality and minimal degree of creative personality that the work is a result of the author’s mental activity different from other existing works. Furthermore, it should be an ‘expression of human thoughts or emotions.’ In light of these requirements of a work, the acting performance of an actor has ‘creativity’ because even when playing the same role or character, the expression varies according to the actor’s performance and the performance is not just an imitation. In addition, since the thoughts and emotions of a person in films or TV shows are conveyed to the audience throughout the actor’s performance, acting could be regarded as an expression of human thoughts or emotions. Because the court in U.S.A has an attitude of denying the copyright for actor’s acting performance, but there are differences in the requirements for a work under the U.S. Copyright Act, and the Copyright Office’s practical rules or guidelines are not same between U.S.A. and ours, it can not be applied equally in Korean court. Therefore, the acting performance of an actor that satisfies the requirements of a work such as creativity and expression of human thoughts or emotions, like dance or choreography, should be recognized as a work and protected under the Copyright Act.