Hello. This is lawyer Shin Jun-seon from the law firm Cheongchul.

One of the most common concerns that content creators face is wanting to use existing videos, images, or characters, but facing issues with copyright. Although we live in an era dominated by video and music content, there are often cases where it is necessary to utilize others' works in the production of written works like textbooks and books. Many wonder what legal criteria to apply and how to approach these situations, as well as what the scope of copyright law covers.

Recently, a publisher wanted to utilize the cover (including illustrations) of a famous book and photographs of historical figures when producing a textbook. They encountered difficulties obtaining consent or permission and requested legal advice on the legality of various alternatives they thought of on their own. Below, we will examine the legal considerations for utilizing works based on this case.

[Question]

What is the legality of the following cases in producing written works for commercial purposes without obtaining permission for use?

1) Using the work as it is while indicating the source

2) Asking the original illustrator to create a similar work

3) Creating a work that is similar to the original

[Answer]

1. Provisions on limitations of economic rights under the Copyright Act (When use of the work is allowed)

The Copyright Act aims to protect the rights of authors and adjacent rights and contribute to the improvement and development of culture and related industries by promoting fair use of works. In this context, the Copyright Act contains provisions limiting economic rights from Article 23 to Article 35-5.

Regarding educational purposes, the Copyright Act allows partial reproduction and transmission of published works for classroom purposes in Article 25, permits ‘quotation’ within the reasonable limit for news, critique, education, and research in Article 28, and provides a comprehensive ‘fair use’ regulation in Article 35-5, allowing use of works without infringing on the usual ways of utilization and without harming the legitimate interests of authors. Whether a use falls under fair use is considered comprehensively by evaluating the purpose and nature of the use (commercial or non-commercial), the type and purpose of the work, the significance and proportion of the portion used in relation to the whole work, and the impact on the current or potential market or value of the work.

2. Using the work as is after indicating the source

Article 37 of the Copyright Act stipulates that those who use works must indicate the source, which may lead practitioners to misunderstand that it constitutes legitimate use simply because the source is indicated. However, in principle, permission from the copyright holder is necessary for the use of a work (Article 46 of the Copyright Act), and it must meet the necessary conditions to fall under the allowable cases.

Case law has determined that in cases of ‘quotation’ based on Article 28 of the Copyright Act, “whether it is quoted within fair practice and reasonable limits should be considered comprehensively by assessing the purpose of the quotation, the nature of the work, the content and length of the quoted part, the manner and form of the work being quoted, the general perception of the reader, and whether it replaces demand for the original work” (see Supreme Court Decision 97Da34839, decided on July 10, 1998, and Supreme Court Decision 2004Do1075, decided on May 13, 2004).

Returning to our example, the publisher is producing a textbook for commercial purposes and selling it, and even though it may seem like a simple quotation or introduction, the fact that the cover includes the work of an illustrator and that there is an excessive portion borrowed from the original work’s content suggests that it may infringe on the current market value of the original work, making it difficult to view it as a fair quotation and thus poses a risk of violating copyright laws.

Additionally, in the case of photographs of historical figures, separate issues concerning portrait rights need to be considered. In the example discussed, since the subject was a figure from the past who is now deceased, there is generally no issue of portrait rights. However, even if the photograph depicts a past figure, if the source of the photograph is clear along with the person who took it and the route it was provided through, one should check whether that source offers the image for a fee and seek permission for use accordingly.

3. Commissioning an illustrator to create a work identical to the original

In such cases, practitioners might think that obtaining a similar work from the original illustrator resolves copyright issues. However, reviewing the case suggests that if the illustration is the same as the cover of the referenced book, there likely exist restrictions regarding the use of the illustration for separate purposes in the contract relationship between the illustrator and the publisher of the quoted book, resulting in a higher likelihood of legal actions from that publisher in the future. Therefore, this method also cannot guarantee legality.

4. Receiving a similar illustration from someone else

Even if an illustration is created similarly through an illustrator who is not the original creator, the conclusion is that this will likely constitute illegal reproduction, thus potentially infringing copyright. In the case discussed, since the reproduction is intended to introduce the referenced book, the original work subject to infringement is clearly specified, and this action would violate the reproduction and distribution rights of the original creator under copyright law.

5. Conclusion

During the process of producing content, those in charge may attempt to seek legitimate permission for use of works but may encounter difficulties due to complex processes or financial issues, leading them to consider alternatives like those in the example.

However, the safest way to utilize someone else’s works is to obtain explicit permission from the copyright holder. Especially in the production of content for commercial purposes, if works are used without permission, it may lead to greater civil and criminal liabilities in future copyright infringement issues.

Therefore, as a content creator, it is advisable to conduct legal review regarding the use of works from the planning stage and obtain permission through prior consultations with copyright holders. Additionally, it is important for copyright holders to prepare preventive measures and remedies in case their works are improperly used without permission.

Lawyer Shin Jun-seon has extensive experience in providing advice and resolving disputes concerning various copyright infringement cases, so please feel free to contact me if you need legal advice on this matter.