Copying vs. copyright infringement

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The latest copying brouhaha involves Block B, so I thought I’d talk a bit about copying vs. actionable copyright infringement that you can actually sue somebody about. (Kpopalypse has done several posts about copyright that apply specifically to music: Go here and follow the links.)

I’m going to start by pointing out that 1. I am not a lawyer, and 2. the copyright laws I am familiar with are U.S. laws, which can be very different from laws in other countries. So why bring this subject up at all, if all I have is a layman’s knowledge of laws that may well not actually apply to Korea? Because U.S. copyright law (and U.S. civil law in general) is very focused on the notion of damages. What are damages? The actual impact someone’s misbehavior has caused you. If someone did something wrong, but it didn’t hurt you in any meaningful, material way, you cannot sue in the United States.

Even if damages aren’t key to the law in other countries, everybody takes them into account. If something doesn’t cause you significant harm, why would you go to the trouble of going to court about it? You hopefully have better things to do with your time! So, Block B lets things that might be actionable in Korea slide, because why bother?

With copyright law, one of the key questions courts look at when attempting to determine if sufficient damages have taken place is, Will people buy this thing instead of the thing made by the copyright holder?

If the answer is yes, then you are in trouble. For example, if you write under the pen name “Steven King,” and your novels include the horror titles Coju, Carri, and Pet Cemetery, chances are very good that you will have to give any the money you made (plus punitive damages) right back to Stephen King.

If the answer to that question is no, then you can’t get sued. This is why parodies are legal. It is extremely unlikely that someone will see something like this:

and regard it as equivalent to reading the 50 Shades of Grey book or seeing the movie. The Korean SNL skit isn’t cutting into 50 Shades of Grey‘s audience, so they’re not damaging E.L. James’ revenues, so she can’t sue (or maybe legally she can, but she’s not going to bother).

So, let’s look at this Twice copying Block B issue.

Block-B-twice_1461684124_af_org

Now, there’s been some back-and-forth because the idea of having someone show through torn paper is nothing new (and indeed those kinds of vague concepts can never be copyrighted). I personally do think that the two album covers are similar enough that, were I an executive at Twice’s label, I would be asking some pretty pointed questions of the graphic designer.

But none of that really matters. The question that matters is, Is Twice cannibalizing sales of the Japanese edition of H.E.R? Are people confusing this:

with this?

Uhhh…I’m going out on a limb here and guessing that the answer to that question is no. I’m going to anticipate that Seven Seasons will not take legal action on this one. (And it’s not like they’re afraid to!)

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2 responses »

  1. OMG…that SNL bit. Thank you for that. Now, what was your article about? Oh yeah, Twice copying Block B’s cover art. Yeah, like THAT’s never been done before.

    • I was ridiculously happy to have the opportunity to post it! When it’s good, the Korean SNL is very good indeed….

      I’d actually be really psyched if a girl group totally copied “HER”. I’m talking a shot-for-shot remake of the video, complete with ostrich and laundry detergent. Weird and not fan-servicey at all. It will NEVER happen….

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