응용미술의 저작물성 – ‘히딩크 넥타이’ 사건을 중심으로 -

Abstract

In the past, the Supreme Court strictly interpreted works of applied art in view of their relationship to Design Protection Act. However, through the Hiddink Necktie case, the past criteria was virtually abolished. However, it failed to present specific criteria for judgment on the requirements for establishment of applied art works, such as separability. Subsequent judgments have departed from the position of denying copyright in most cases, and are drawing reasonable judgments in individual cases, focusing on whether or not they are separable from the products. However, for designs applied to three-dimensional objects, judgments that deny separability are still the mainstream. However, in many cases, it is not possible to provide concrete reasons for denying separability. There were cases in which separability was judged based on duplicability. However, in today's design environment, it is not easy to classify works of applied art based on their replicability. The reason why duplicability was important was to prevent confusion by reducing overlapping areas with the Design Protection Act. However, as the Design Protection Act expands to areas that do not presuppose products, such as image design, the area where the two laws overlap is rather widening. In such an environment, rather than avoiding overlapping applications, it is desirable to acknowledge overlapping areas and allow creators to set protective measures according to their needs. Considering the points above, it is not desirable to define applied art works separately and to impose special requirements only on them. Rather, in the process of judging originality, I think it is better to find a methodology that can examine the degree of originality in more detail if it has the characteristics of a functional work.