When you enter into an endorsement agreement with a celebrity in order to advertise your products and services, the overall behavior of that celebrity impacts the value and reputation of your business positively, and sometimes negatively. Therefore, most endorsement agreements with a celebrity or a sports star have a so-called Morals Clause.
What is a Morals Clause?
The morals clause imposes a contractual obligation for the models not to cause any harm to the public image of the sponsor or the brand owner. It is the same in South Korea.
In April 2013, attorney Mr. Wonil Chung successfully obtained a Supreme Court’s ruling which overturned lower court’s decision in connection with the sponsored links, Internet keyword advertising services, operated by Overture Services Inc., a wholly-owned U.S. subsidiary of Yahoo! Inc. Before this ruling from the Supreme Court of South Korea, there had been an increased controversy over whether Overture system user’s deployment of an automated program to access to the sponsored links could fall into a crime causing a harm to the Internet network system. In this case, attorney Mr. Chung argued before the Supreme Court of South Korea that it cannot constitute a statutory crime, otherwise the result would be an over-reaching of Korean criminal statute and cause an excessive chilling effect on the free access to the Internet. Responding to Mr. Chung’s arguments, the Supreme Court of South Korea held that it does not constitute a statutory crime of interference with stable operation of the Internet network. With its ruling, the Court struck down the prosecutor’s attempt of excessive criminalization and reinforced online service user’s right of free and unrestricted access to the (more…)
Our attorney, Wonil Chung, Esq. was invited to speak on the entertainment law practice at the 20th Annual Conference of International Association of Korean Lawyers (IAKL), which was held from September 13 to 16, 2012.
At the conference session titled “Entertainment Law Practice”, Mr. Chung gave an English presentation in front of U.S. and Korean licensed lawyers and law school students on the various legal issues arising out of the Korean music business, so-called “K-POP” and introduced recent high-profile litigations involving famous K-POP artists such as TVXQ, KARA and big management companies such as SM Entertainment. He also provided comparative analysis between the laws of South Korean and the U.S.
Mr. Wonil Chung, a Korean licensed lawyer, has extensive experience in advising and representing Korean and non-Korean clients on various issues involving Korean laws such as intellectual property, (more…)
There have been disputes as to whether Digital Rights Management(DRM) does violate competition law. By using a DRM, the company can tie the playback of certain digital files to its own IT device. The problem arises when the company has a dominant market position, because it entails an argument from competitors that the company has abused its dominant market position to distort a free competition at the market.
In November last year, the Supreme Court of Korea firstly issued a ruling addressing this issue. The case dates back to 2006, when Fair Trade Commission(FTC) of South Korea ordered SK Telecom, the largest mobile carrier company and music download service provider, to lift up a DRM which had prevented the purchasers of MP3 mobile phone of SK Telecom from playing MP3 files downloaded from other online music store that SK Telecom does not operate. SK Telecom had appealed the FTC’s decision to the court.
At the heart of this lawsuit lies the issue of whether SK Telecom’s use of DRM does constitute an abuse of its dominant market position under Korean Competition law. In this regard, the Monopoly Regulation and Fair Trade Act(MRFTA) of Korea provides that any market dominant enterpriser shall not commit an act of either (i) unreasonably interfering with the business activities of other enterprisers or (ii) unreasonably doing considerable harm to the interests of consumers. The FTC found SK Telecom’s using a DRM (more…)
On February 10, Seoul Central District Court ruled that Mr. Jin-Young Park, one of the most influential music producers and composers, had plagiarized another Korean composer’s song. The defendant Mr. Park is well-known as the co-owner of JYP Entertainment, one of the top Korean music production companies(Gi-Huek-Sa). He has produced numerous albums for famous K-Pop artists with great successes including, but not limited to, Rain, G.O.D and Wonder Girls.
The plaintiff Mr. Shin-Il Kim, a K-Pop composer, had filed a lawsuit against Mr. Park on July 2011, claiming Mr. Park’s song titled “Someday”, sung by IU, had infringed his song titled “To My Man” and he is entitled to a compensation of approximately 90,000USD.
It was reported that the judge recommended a settlement to the parties before issuing the ruling, but the both parties objected to it. And finally the court sided with the plaintiff. The Court found that four bars from the chorus of the defendant’s song is substantially similar to that of the plaintiff’s song which constitutes a copyright infringement and ordered the defendant to pay approximately 20,000USD to the plaintiff as a remedy.
Under Korean copyright law, a claim for plagiarism and copyright infringement is established when the defendant had access to the copyrighted work of the plaintiff and there exists a substantial similarity between the two works. With regard to the first element, (more…)
It was reported that last month Apple’s South Korean office paid $945 of compensation to one of South Korean iPhone users for the breaching of privacy by the controversial iPhone user location tracking. Here is the detail from Reuters.
By the way, some news media reported that this was a ruling from a Korean district court. I, as a Korean lawyer, think that statement is half right and half wrong. Basically it is true that the court issued a ruling which ordered the Apple Korea to pay $945 to the user. But this was not a formal trial case, but a Request for a Payment Order case. Payment order is a more convenient & simplified legal procedure for claimant to get a judgment from the court compared to a formal lawsuit. Once a request filed, the Korean court does not question the debtor (in this case, the Apple Korea) and issue a Payment Order within 2 or 4 weeks (in certain courts, within a few days). This payment order, a sort of ruling, asks the opposing party to choose whether to admit the claim as written on the request or to make an objection. If no objection has been raised from the opposing party within 2 weeks, then (more…)
There exist growing needs for consumers to watch TV broadcastings from any place and by any way they want. In response to these needs, several new business models have come into; for example, an Internet TV recording and/or streaming service, RS-DVR, SlingBox and any other place/time-shifting devices hosting services. But the problem is that copyright holders, the TV broadcasting companies, are fiercely objecting to these new business models contending they are infringing their copyrights. It is quite interesting for an IP lawyer to see how the courts from various countries have found the answer to this legal issue.
Lets’ start with the situation in South Korea, where I’m practicing the law. Actually there have been two cases related to this issue; Ental TV case and MyTV case. Ental TV was an Internet-based TV recording service. The registered users paid some amount of fees to the service provider and the service provider recorded TV broadcastings on its server at the request of the individual users with its automated software program, then converted it into the PC file format and sent the file to the user via Internet. On April 30, 2009, the Seoul High Court ruled this Ental TV service infringed copyright of the TV Broadcasters. The court found that it was the service provider, not an individual user, who recorded and copied the TV program, because the service provider owned and managed all the facilities used in recording the TV program. Also the Court added that even though it was the individual user who copied the TV program, the very act of copying (more…)
There have been an increasing conflict between the free expression and the copyright protection in relation to the matter of a UCC, a user-created content, posted on the internet site. For example, in the United States, there was a legal dispute concerning a 29-second YouTube video clip of a toddler dancing to Prince’s “Let’s Go Crazy”. In that case, the copyright holder to the Prince’s song alleged the YouTube video clip explicitly infringed the song’s copyright.
Almost the identical lawsuit had been filed in South Korea. In Korea, a father uploaded to his blog operated by Naver, the largest Internet portal site, a video capturing his 5 year-old daughter singing and dancing to a famous Korean female singer(Dambi Sohn)’s song, titled “Crazy” – what a coincident that two cases even had very similar song titles, “Let’s Go Crazw” and “Crazy”. Just soon after the video clip was uploaded, it was taken down by the portal site operator upon a request from the copyright holder to the song alleging the video is a copyright infringement as it was used without permission. Then the father filed both a declaratory lawsuit claiming that uploading the video did not constitute a copyright infringement and a monetary compensation lawsuit for mental distress which he suffered from the unjust take down of the video he’d made.
On February 18, 2010, the Seoul Southern District Court sided with the father. The court ruled that uploading a video at issue did not constitute a copyright infringement because it fell within the scope of “the quotation from works made public” under Article 28 of the Copyright Act, which (more…)
Q) I, as a foreign actress living in Korea, recently appeared in a Korean movie that was very successful. I had about 10 lines – 10 minutes of screen time. Now I see that the film company has put my picture on the back of the DVD case in which the movie has just been released. They Never asked for my permission and Never paid me any money for this. Do you believe that I have a case against the film company? Thank You.
A) I understand a certain portion of movie screen shot is printed on the back side of the DVD case. In this case, the producer, not an actor, has the right to the screen shot. So the producer does (more…)
This is an issue arising from an international IP dispute between Konami, a well-known Japanese game production company, and Neople, a Korean game production company. Back in 2007, Konami alleged that game characters in Neople’s game titled “Shin-Ya-Gu”(New baseball) infringed Konami’s copyright in its famous baseball game “Jikkyou Yaku”(see the picture. the left image is Konami’s character and the right one is Neople’s) and filed a copyright infringement lawsuit to a Korean court.
The lower courts had overruled Konami’s claim stating a game character itself could not be protected as a copyrighted work under Korean copyright law unless such character had been commercialized independently.
This year, however, the Supreme Court of Korea dissented from the lower courts’ opinion. The Supreme Court ruled a game character can be copyrighted separated from its original work, a game. The court held that “In order to be protected under the copyright law, a work must be a creative work expressing human thoughts or emotions. Thus, in case of a character implying shape and name of person, animal and so on appearing in cartoon, television, movie, newspaper, magazine and so on, if the creative personality was shown in the visual expression as to the appearance, action of such person, animal, then such character can be a work as protected under the copyright law, apart from its original work”. Then the Supreme Court continued to held that (more…)