미국저작권법상 공정사용의 법리 : 패러디에 관한 논의를 중심으로

Nowadays, the number of infringement cases in the copyright area is increasing. In the United States of America, Congress initially protected only books and maps. With time, however, the law expanded to include new forms of art and technology. Most people are confronted with numerous parodies in the entertainment industry via books, the radio and television. Therefore, a parody is a significant creative medium in our contemporary. Aparody not only has entertainment value, but also serves a critical function. Protection of parodies is one of society’s values. However, it is against the interest of the author of creative works. If society allows the free creation of parodies, copyright holders will lose their interests. Therefore, a solution will balance the interests of the copyright holder and the parodist. To analyze the fair use doctrine in a parody and look at the balance between the copyright holder and the parodist, it is valuable to consider the case of Acuff-Rose Music, Inc. v. Campbellbecause it gave an important precedent for us to decide and use the fair use doctrine. In Campbell, the Court stated that one should judge fair use on a case-by-case basis, in other words, by all four fair use factors. In the case of Eldred v. Ashcrofit which is the most recent conclusive statement on the relationship between copyright and the First Amendment, it gives us a number of ways that the First Amendment could be brought to bear to revive the fair use doctrine for free speech and expression. In Korea, there is currently no general clause like the fair use doctrine in the United States. The Copyright Law of Korea provides individuality when the law needs to protect the infringers from copyright holders. However, to develop free expression and to encourage the sharing of information, it is important to introduce a general clause to protect parodies in Korea. Recently, the Seoul Central District Court noted that 4 points need to be considered when determining whether a parody infringes the copyright holder. They did this by interpreting Article 28 of the Copyright Act which is about the standard of citation use. In it, Article 1 is about the balance of interests of the copyright holders and users, while Article 28 is about citation in the Copyright Act of Korea. It is therefore possible to use the fair use doctrine, so that it has the same effect as the general clause in the United States of America.