純藝術品侵犯改編權認定之困境及其突破

The Dilemma in Finding Fine Art Works Infringe Adaption Right of Other Works and Ways to Breakthrough

藝術家在創作純藝術品過程中常使用挪用和借鑒手法，這種創作特點易讓被借鑒的原作品著作權人以侵害改編權為由對其提起訴訟。法院在審理該類案件時有義務認識到，純藝術品作為我國《著作權法》所保護對象的一部分，具有其特殊性。該文通過運用比較研究、實證研究等方法，論證了純藝術品侵害著作權案件中，法院在認定涉案藝術品是否具有獨創性時應當適用“可識別的變化”標準的合理性，並對如何在該類案件中適用“接觸+實質性相似”的侵權認定規則給出了具體的司法建議。

It is very common for artists to use appropriation when they are creating fine art works, which is as common as the phenomenon that the artists are often taken to the court because the appropriation is likely to be seen as counterfeiting as to the author whose work has been appropriated. In the face of this, the court has the responsibility to realize the specialization of the fine art works along with the development of fine art market. Utilizing study methods like comparative study and empirical analysis, this paper has made a conclusion that the court should take 'distinguishable variation' as the threshold of originality of the fine art works. This paper also make a suggestion for the courts how to utilize the 'access & substantial similarity' standard properly in the cases involved fine art works when they come to decide whether the defendant has infringed the plaintiff's adaption right.