영상물의 제작에 있어서 시청각 자료 및 소품의 정당한 사용(fair use)의 범위

Scope of Fair Use of Visual or Audio-Visual Materials and Set-dressing in Production of Audio-Visual Works -Analysis of Korean and American Cases

The scope of fair use of copyrighted material is difficult to ascertain. Although scholars and practitioners point to four abstract factors such as the purpose of such use, the nature of the work using the material, the amount of the portion used, and the possibility of interfering with the market potential of the material being used, juggling these four factors has not produced a user-friendly guilde line that can be readily adopted and used by professionals in the cultural industry and the art world. This article attempts at establishing such guilde line, first by deconstructing the four factors from the empirical viewpoints ― namely, surveying how the weighing of the four factors actually play out in real cases ― and then by refining the central concept of transformative use again through the test of real cases. In this article, the author focuses on the scope of fair use as applied to the use of visual or audio-visual materials and set-dressing in production of audio-visual works such as films and television programs. The author arrives at a new practical definition of fair use, namely, using a copyrighted material for a purpose wholly different from the author's creative purpose to an extent narrowly tailored to that purpose.