새로운 게임이 신작을 발표할 때마다 과거 인기 있었던 게임과 동일하거나 유사한 부분에 대해 표절 의혹이 제기되어 왔으나, 그 동안 국내 법원의 판결이 거의 없었기 때문에 이론적인 논의에 그쳤던 것이 사실이다. 그러나 국내에서는 최근 주목할 만한 두 건의 판결이 있었다. 하나는 가처분 사건이라는 한계가 있으나, 다른 하나는 저작권 침해 여부를 본안 판단까지 하였다는 점에서 의의가 있는 사건으로 평가할 만하다. 이러한 분쟁은 아직 초기 단계에 있기 때문에 지방법원의 판결만 있고 대법원 판결은 없지만, 게임의 표절과 관련하여 저작물성 및 실질적 유사성이라는 측면에서 저작권 침해 여부를 판단하고 구체적인 적용의 잣대를 정립하기 위한 기준을 제시하였다는 점에서 그 의의가 있다고 할 수 있다.

In most countries, plagiarism itself is not a crime; there are copyright infringement laws, and those laws are primarily in the civil codes. Copyright infringement is not always plagiarism, and plagiarism is not Copyright infringement. One is a legal matter, the other is an ethical matter. In the case of a game, it is not possible to protect the idea of the game, that is, the way the game is played, but the creative production in which a series of images (regardless of whether or not accompanied by sound) are collected, and which can be played by means of mechanical or electronic devices and can be seen or heard the series of related images which are intrinsically intended to be shown by the used of machines of devices such as projectors, views, or electronic equipment, together with accompanying sounds would be protected as Cinematographic works in Korea. Copyright is restricted to the expression in a fixed manner(text, recording, drawing) of an idea; it does not extend to the idea itself. A suspicion of plagiarism has been held about copyright infringement when new game was published in Korea. For example, “Kart Rider,”a Nexon-produced online game, has also been criticized for having a concept too similar to Nintendo's“ Mario Kart.”Nexon has been accused of plagiarism, and officially apologized to IMC Games. However we have few judicial decision in Korea. But Recently we have two decisions. The matter of copyright infringement in game is now on the initial stage. So the prosecution said it will bring the case to the Supreme Court. This article is designed to review judical decisions in U.S.A. and in Korea. For plagiarism in game, these decisions are worth reading under the standard of idea-expression dichotomy, originality, copyright infringement, substantial similarity. But it has been very hard to protect computer graphics, visual elements of game in both countries. The latest judicial decision worthy of notice in Korea is as follows: Local game developer Neople and publisher Hanbit Soft behind online baseball game“ Sinyagu”won a plagiarism lawsuit filed against them by Japanese game company Konami, the Seoul District Court ruled on the 20th of July 2006. Announcing the verdict, the court said that there are some similarities between “Sinyagu”and Konami’s“ Powerful Pro Baseball”but characters in the accuser’s game started to appear in many comics and animations even before 2000 and the similarities in their facial expressions and body movements are unavoidable as the two games feature the same sport game.

I. 서 론
II. 게임물의 저작물성
III. 게임 저작물의 저작권 침해에 대한 국내외 사례
IV. 시사점
V. 결 론

• 서계원(법학박사, 동국대 법과대학 조교수) | Suh, Kye Won