영화 및 TV 드라마에 대한 표절 판단 기준

Substantial Similarity in Motion Picture and Television drama

It is very tricky to assess copyright infringement among similar screenplays and television drama scripts. In copyright infringement cases, courts demand two conditions for plaintiff to win the case' access and substantial similarity. Regarding "access" issue, plaintiff can prove it rather easily through his/her work's previous publication orexhibition. But when it comes to substantial similarity, it is not simple. In case of dead copy or the like, there is no Question in assessing infringement. In most copyright infringement cases, two works are not the same, but similar or very similar. The point is how similar it should be and what factors are should be similar for the court to declare infringement. What is "substantial" in substantial similarity? In dramatic works such as motion picture screenplays and TV drama scripts, they consist of many factors including theme, plot, character, setting and so on. In addition, idea/expression dichotomy makes the problem more difficult. Copyright law protects only expression and does not protect idea. But there are some grey area between protected expression and unprotected idea. For example, when the way of expression for specific situation is only one or extremely limited, the idea and expression is merged. In this case copyright law could not provide protection for the limited expression because it results in protecting idea itself. For judging substantial similarity, we should consider Quantity and Quality of Quoted works. The more it Quoted, the more likely it could be substantially similar. Even though the Quoted parts are rather small, if the parts are essential or creative it could be assessed substantial similarity. Literary works are more likely to be protected than functional works and factual works because authors' characteristic creativities are reflected more strongly in literary works that functional and factual works. And whose eye should be adopted to assess similarity is another issue. Generally most courts adopt lay person's viewpoint, not expert's. There are various theories for judging substantial similarity. In Korean litigation cases, the courts largely employ "the total concept and feel" test. The theory has been developed in US case law and according to this theory lay person's total concept and feel is more pertinent than expert's analysis in assessing substantial similarity. Film and TV drama are comprised of many factors' characters, plot, moods, theme, setting, pace, sequence of events, dialogue. Among them character and plot are more important than others in the context of substantial similarity judgment. General concept and idea of some character is not protectable, but expression is protectable. There lS no special way to compare two works' characters. Nevertheless, I think analyzing back ground, personal attributes and motivation of characters of two works is practically useful for substantial similarity. Plot is a way of design connecting many events of screenplays and TV scripts. The important thing is that even though abstract plot is similar if there are differences in specific plots between two works, they are not substantially similar. In total concept and feel test, mood factor plays an essential role in deciding total concept and feel of two works. The other factors take minor roles in assessing substantial similarity. Nevertheless it should be noted that every factor could and should be considered in judging substantial similarity. In dramatic works similarity, the non-literal similarity is more important than partial. literal similarity.