The court admitted similarities but dismissed Kenna’s copyright claim.
“Kenna’s photo and the carrier’s commercial photo look similar to each other because both depict the same pine tree island and its reflection on the water, featuring the same natural elements of water, sky and trees,” the court said.
But the court said the commercial photo shouldn’t be viewed as copyright infringement as “both photos were taken in different seasons, at different times.”
|“Pine Trees” by Michael Kenna (Gallery Kong)|
|Korean Air’s 2011 TV commercial|
The ruling was based on a Supreme Court precedent that “the scope of copyright protection is limited to expressions, not ideas.”
It is the first ruling in Korea to address the originality issue for a landscape photograph.
Kenna gained popularity in Korea with the black-and-white photo, “Pine Trees,” taken of a small pine island in Gangwon Province. The piece led many local photographers to shoot the same island.
The copyright controversy was sparked by a similar photo used by Korean Air in a 2011 TV commercial. The photo was taken by an amateur Korean photographer. The commercial prompted Gallery Kong, which represents Kenna in Korea, to file a 300 million won ($280,000) lawsuit against the nation’s biggest airline in July 2013.
Kenna appeared at the Korean court as a witness in January 2014 and claimed that the advertised photo was “almost exactly the same” to his creation. The identical elements he cited included the same location, the same compositions such as the size of the trees and their black silhouettes, and the water reflecting the trees like a mirror, all of which was captured through long exposure.
He further claimed that Korean Air must have been aware of the existence of the “Pine Trees” series as the airline’s cultural foundation contacted him in 2010 with an exhibition plan to display his popular series. The exhibition, however, did not materialize because of disagreements.
Korean Air has argued that it is “unfair” to claim the exclusive right to landscapes, which should be shared and enjoyed by everyone. Therefore, elements that Kenna found identical such as the long exposure and the reflection of the water are not entitled to the protection of copyright law.
The air carrier said it will “take further actions to recover damages to its reputation by filing a libel suit (against the gallery).” The gallery said it will appeal the ruling.
The case has triggered debates in the Korean photography community on whether elements of a landscape photograph can be viewed as elements constituting copyrights.
By Lee Woo-young (email@example.com)