IP & Art

In Korea, it is recognized as an architectural work if there is creativity in the overall appearance rather than the functional element of the building. However, due to the characteristics of architectural works that can be seen by anyone in public places, photography or depiction in drawings, and accompanying exhibitions, etc. are freely permitted. However, there may be restrictions on use for profit-making purposes such as sales. In Korea, architectural works were specified in the Copyright Act in 1986, and in the United States, a separate law called the Architectural Copyright Act was enacted in 1990 to protect them.

First, in order for a building to be recognized as an architectural work, it must first have creativity, just like a photographic work. In Japan, architectural works require a high level of artistry, but in Korea, only creativity is required in a general sense. Judgment is based on the overall appearance, not the individual components constituting the architectural work.

And in determining whether or not copyright is infringed, it is the same as for other works. That is, there must be an original architectural work. And there must be an unfair use based on this. In judging this, whether or not there is substantial similarity is the key. However, the idea part or the functional part should be excluded here.

Therefore, the three-stage analysis method developed in the United States has great implications in determining whether or not there is copyright infringement. According to this, first, architectural works go through three stages of filtering. First, the idea part, the public domain, and the functionally required part are separated and judged. That is, these three areas must be freely shared.

First, let's take a look at the US case law regarding the idea part. In the celestial-shaped structure, the celestial shape is not a simple idea, but the copyright holder expressed it in the form of architecture, so it was considered to be a subject of copyright protection. In other words, the characteristics of the structure were considered to be the concrete expression of the mental effort of the copyright holder. However, the form related to the normal function of a general building is only an idea, and it will be difficult to see it as an expression.

And the shared domain means architectural design elements such as windows. This is because it should be shared by all. It is worth noting that Korean precedents separately judge whether or not the creative personality of the author is revealed, even though there are some differences depending on the author in the floor plan of apartments, etc., it is difficult to recognize the creativity of the functional work alone.

Then, in judging the actual similarity, the second-stage analysis method is used again. Substantial similarity is determined by extracting unique elements that are recognized for creativity, but if these elements are for the function of an architectural work, they are excluded from the judgment. And the most important criterion for judging is that we look at it according to the judging criterion of 'Total Concept and Feel'. In other words, the actual similarity is judged by the emotions felt while looking at the overall exterior of the architectural work from the point of view of the general public.

There are not many concrete examples of whether architectural works are infringed. For reference, for example, a dispute arose over whether the architectural work was infringed between a mushroom-shaped architectural work on a round roof and a building imitating it. Accordingly, the court judged that this shape was an expression of an idea, recognized the creativity of these expressions, and made a ruling that recognized copyright infringement, considering that there was a substantial similarity between the two buildings.

However, in the case of architectural works, ideas and functionality must be developed through mutual sharing, and at the same time, the creativity of the copyright holder must be protected. In addition, since architectural works can be viewed by anyone in the public domain, it is necessary to study legal principles on infringement and protection of architectural works by appropriately reflecting these characteristics.