“외톨이야” 사건 - 음악저작물 표절에 대한 판단 기준 - 서울중앙지방법원 2011. 4. 13. 선고 2010가단86875판결의 평석

Plagiarism in music industry becomes a social issue through all the years, especially when popular rock band "CN BLUE"(the song "Loner") had a copyright issue with independent band "Y Not"(the song "Blue Bird") in early 2010, the latter eventually took the case to the court . The court held in favor of "CN BLUE" on April, 2011, meaning no copyright infringement found, but standard for the music plagiarism still remains in controversy. Standard for the music plagiarism needs two-step test. First, the direct evidence of access and then second the indirect evidence of access and striking similarity. Plaintiff has tremendous burden of proof for the access by direct evidence. Therefore, indirect evidence of access and striking similarity between 2 songs, it can assume replication. When the defendant is assumed to copy the plaintiff's work, the court should determine whether there is substantial similarity between the songs casued by the defendant's replication and illegal use. Only with the assumption of the defendant's replication, the court cannot approve his copyright infringement. Replication without substantial similarity can be seen as a new sepression where the defendant added creativity. Also, in a case where the access is approved but striking similarity is not approved therefore replication is not assumed but substantial similarity is approved, copyright infringement can be approved if independent creation is not approved through the investigation of unconscious replication. Above all, the importance of the preventive measure against plagiarism should be noted among the public by the private independent committee which is consist of experts in music industry, other than the court, which might lack the expertise in music plagiarism case.