무용저작물의 표절 판정기준에 관한 연구 - 실질적 유사성을 중심으로 -

Due to recent development of information media and internet, the number of plagiarizing dance performance is increasing. At the copyright violation lawsuit due to plagiarism, a plaintiff should prove and argue copyright, copying, and actual similarity. The most important requirement among three requirements is actual similarity. Judgment process and criteria of actual similarity are as in the following. First step is whole comparison. Without dividing expression and idea of work, a ordinary person determines similarity and identity between plaintiff’s work and defendant’s work by comparing both works. Second step is division of expression and idea. Among the similarities and identities determined in the first step, an expert determines which are protected expression and unprotected idea. The unprotected idea includes basic step, individual body motion and its expression method, new technique, flow, space, tempo, mood, theme, plot or dramatic composition without creativity and concreteness, props, and form of dance. On the other hand, the protected expression includes combination of creative body motions and steps, creative action pattern with combination of specific space or props, and plot or dramatic composition with creativity and concreteness. The protected expression excludes public assets and other people’s creations. Third step is judgment of similarity. In this step, similarity between borrowed expression from plaintiff’s work and correspondence part of defendant’s work is determined. Even though the quantity of borrowed expression is small, if it is qualitatively important that is fundamental part, the actual similarity should be acknowledged. Even if borrowed expression is a part of defendant’s work, the actual similarity is not denied.