사진저작물의 보호범위-동일하거나 유사한 피사체를 사진촬영한 경우를 중심으로-

Article 4(1) of Korean Copyright Act lists, as examples, 9 categories of works of authorship. It must be noted that ‘photographic works’ are listed separately from various types of works of art. This is sensible because photography is used for artistic as well as scientific purposes. Article 4(1)(vi) of the Act provides that ‘photographic works’ referred to in the Act shall ‘include works expressed by a process analogous to photography.’ As photography introduced a new technical method of reproducing images, initially these images were seen merely as reproductions of nature, produced by tool-like machines, a process in which the photographer played no creative role. Even though photography has been accepted as an art form nowadays, the recognition of the photographer as an author in the full meaning of author’s right is still a problematic issue. A fundamental principle of copyright law is that the Act protects expression and not idea. Where the line lies in the work between the idea and the expression of the idea is often a difficult determination. Since the creation of photographic works is highly dependent on equipment, and anyone can take a photograph with ease by pointing a camera at a photographic subject and pushing the shutter, the question of originality is often disputed, however so long as the photographer’s individuality is apparent from the decision taken on the choice of subject and location, the composition, focal speed, exposure and shutter speed and the processing of the image after it taken, originality will be recognized. When the subject―for example a landscape or a person’s pose―is identical or similar, it is the matter of preference of a photographer in deciding when, where and how to shoot. The subject matter of such a photograph is unprotected along with the choices that necessarily flow from the identical or similar subject. For example, the second photographer is photographing a live subject rather than the first photograph, and insofar as the second photographer’s individuality is apparent from the first photograph, there is a meaningful distinction. Such an act would not constitute infringement of the first photograph.