Category Archives: don’t get sued

More top-quality Korean K-Pop journalism

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Not for the first time, the Korean media is demonstrating that it is completely unreliable even when reporting on issue of great seriousness: A woman claimed that she was sexually assaulted by an unnamed idol, and then retracted the claim that the idol was involved, so a Korean media outlet posted a picture of a particular idol–you know, just some guy they picked out of a hat or something–along with the story. Because why wouldn’t you?

Fucking Christ.

Again, remember that, with K-Pop news, the best case scenario is that you are reading an accurate English translation of some incredibly shitty journalism.

ETA: Oh, nice, a Japanese K-Pop news Twitter account put a Block B hashtag on a Tweet about the story (it’s been deleted, and they’ve apologized). Good to know that shitty, irresponsible K-Pop news reporting is truly a global phenomenon! The best bit is that Block B was IN FUCKING JAPAN when the assault happened!

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Commercial use

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The YouTube video of “That Song that Sounds a Whole Lot Like ‘Toy'” was pulled down, which seems like a tacit admission that proper protocols were not observed when it was made. And one of the Korean fans has managed to get through to Poptime, so it seems like Seven Seasons is definitely going to know about it.

(Original Tweet here. And thank you!)

The thing that could potentially make this really expensive for the guy is that it’s a commercial release–“TStSaWLL’T'” (a.k.a. “Megafon”) is on iTunes and Amazon and Google Play and Spotify and God only knows what other retail outlets. That makes its a very different creature than a mixtape using an unlicensed sample from “Toy,” which would likely not be a big deal.

Notice something interesting? When it comes to classifying as song as a commercial release, it doesn’t matter if it makes any money. The mere presence of “TStSaWLL’T'” on retail sites is enough to make it a commercial release. Has the song sold not a single copy? Did the guy actually lose money on it? It doesn’t matter.

I have seen this concept repeatedly confound newbie writers. You tell them that they are making a commercial release when they self-publish a book, and they tell you:

  • “I haven’t made any money from this!”
  • “This isn’t a commercial book–it’s literature.”
  • “There’s not a publishing house involved. It’s just me.”
  • “I’m fine if I don’t make money–this is really a passion project.”

Nobody cares!!! Are you putting your work up for sale? Yes? That’s enough! It’s a commercial release now, and nobody gives a fuck about the rest of it.

The thing is that, at least in the United States, the holder of the copyright on something has certain rights regardless of how the property is used–but they often distinguish between what’s called personal use and what’s called commercial use.

So, let’s say there’s some cool clip art out there, as well as some bitchin’ fonts, and you have used these time and time again to advertise your church’s bake sale or your school club or whatever. You never had to pay for any of this artwork, and that was never a problem–you’ve never even had to think about it.

Because you were engaged in personal use.

Try slapping that shit on the cover of something you’re going to sell, and suddenly there’s a whole bunch of problems. There’s all this small print about “commercial licenses,” and if you don’t pay it any mind, lawyers send you nasty letters and you have to pay a bunch of money.

Do I think that kind of slippery-slope thing is what happened here? I have no idea–maybe the dude thought that Korea is so far away that no one could possibly figure out what he’d done! (It’s not like they have the Internet there, right?) (ETA: We know more now.) But a lot of newer artists do kind of have trouble wrapping their brains around the fact that the arts are commercial–these are businesses and industries, and you can’t get away from that no matter how bohemian or small-time you are.

Even if you don’t think of yourself as a commercial artist, if you’re putting it up for sale, the law thinks that you are one–and it’s important to know that.

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.

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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!)

Gosh, you mean rules actually apply to the Internet?

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If you haven’t been paying attention, Gawker is finding out the hard way that the BRAVE NEW WORLD!!!! of on-line media looks pretty much like the cruddy old world of print, at least when it comes to media law. And that all your claims that you don’t have to follow the same rules as those lame-ass fuddy-duddies will be what the plaintiff’s lawyer quotes in court in order to really land that nine-figure ruling against you.

Legal observers are noting that the ruling itself, or the award, or the requirement that Gawker post a massive bond may well get thrown out on appeal. And indeed it may–that’s usually what happens with these things, the jury rules against the media outlet, but eventually the courts reverse the ruling.

Note that I said eventually. Taking a case to the U.S. Supreme Court is an extremely expensive undertaking, and the history of media law is littered with the corpses of news outlets that eventually won their case but went under anyway.

Which is why this category of posts is labeled “Don’t get sued.” Be smart, kids. Remember that the more popular K-Pop gets in the United States, the more legal standing and the more motivation those entertainers will have to not let totally actionable shit slide.

I just can’t NOT make this post

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So, U-Kwon “posted” on his Instagram that he and his girlfriend had broken up, but then it turned out it was a hacker and he’s really pissed off about this.

You know this, I know this, and Koreaboo knows this.

So, explain this?

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You read the article, and they know it’s a fraud. They KNOW that their headline is 100% incorrect, the result of a total lie, and they don’t change it!!!

It just . . . I just . . . I mean, they just very much put themselves into a position to get sued very recently, and they’re not . . . they’re not being careful at all. 

And this is just–it’s just beyond. Journalists have a responsibility to keep the public informed. And that requires that you put out accurate information. So you have all these ethical rules and procedures to ensure accuracy, and then–once you’ve thrown ethics to the wind and decided you don’t give a fuck about your job–then the law comes into play, the thinking being that if you don’t care about the public, maybe you care about yourself.

Or, you know, maybe you don’t. Maybe you’re so fucked up that you don’t give a damn about your own well-being–and FUCK the goddamned public, who gives a shit about them?

At which point I do wonder why you’re doing this. There are other career options, you know.

No one expects perfection–perfectly good reporters can be lead astray by fraudulent material, that happens to everyone.

But to not fix the headline once you know it’s not true–oh my fucking God. Yes, this is definitely a trivial story, but this kind of thing happens with more serious material as well, and it’s appalling.

The habits these people have gotten into–that’s what gets me. The habits.

(Plus, duh, half those pictures aren’t of U-Kwon. I guess if you bend it around enough, it is accurate: To my knowledge, B-Bomb is not dating U-Kwon’s girlfriend. Good job, Koreaboo.)

P.S. Do you know what this reminds me of? Waaaaaaay back when the first George Bush was president, there was a book of Bloom County cartoons called Tales Too Ticklish To Tell, which had this picture on the cover.

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It was a spoof of this picture, which had destroyed the presidential ambitions of Gary Hart.

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Included in the Bloom County book was a fold-out copy of the strip’s fictional newspaper. This “newspaper” featured the George Bush/Opus the penguin picture on the front, along with a lengthy article quoting George Bush as basically saying, Hey! I was having a good time! It was awesome!

Then there was a “story continued on back page” note, and when you flipped to the back page, there was a teeny-tiny little paragraph waaaay down at the bottom noting that, upon further study, it was apparent that the picture of George and his companion was a cheesy composite.

That is that Koreaboo story. That right there. What once was parody, is now the K-Pop press.

Rice pizza and Korean defamation law

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So I should preface this post by noting that I am not a lawyer, I have never lived in Korea, and I am certainly no expert on Korean law.

I also have never made nor eaten rice pizza.

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I am a little knowledgable of U.S. defamation law, and I was curious about Korean defamation law. Of course what you hear is that it’s horrible, horrible, in no small part because, unlike in the United States, a statement can be deemed defamatory even if it is true. But honestly, “their laws are horrible!” is what you always hear about every other country’s laws–Americans are very chauvinistic about their legal system and tend to think it’s the only one (in the entire world! USA! USA! USA!) that protects people’s freedoms in any meaningful fashion.

A while back, Asian Junkie linked to a Website called KLawGuru, and the blogger there (who, if he isn’t really a Korean lawyer, does an excellent imitation of one) has posted quite a lot about Korean defamation law.

So I read it back then, and I’ve been thinking a lot about it now because of Block B’s recent announcement that they may go after haters legally.

KLawGuru has an interesting example of a case where someone was found guilty of so-called Cyber Defamation (i.e. on-line defamation), even though the statement was true. A fellow named Mr. Kim received botched plastic surgery and started a campaign against the clinic, even going so far as to hire a PR firm (!) to help him in his quest. The clinic sued for defamation and won.

KLawGuru writes:

Unlike offline defamation under the Criminal Act (형법), “Cyber Defamation” (via a true statement) always requires the element of “purposely to disparage.”

Normally, posting something “solely for the public interest” automatically negates the above “purposely to disparage” element.

So, a defendant such as Mr. Kim would have to argue what he did was “solely for the public interest.” I’m sure the argument was made.

Here, that argument was not recognized because the court probably felt Mr. Kim’s actions went overboard. His actions, as a whole, were probably seen as being (at least) partly retaliatory. They weren’t “solely for the public interest.” Had he posted just on “relevant” websites and done so less “systematically,” the outcome could have been different.

Now in the United States, this Mr. Kim could not have been punished for defamation, because his statement was true, plus the statement itself would probably not be considered injurious enough to the clinic’s reputation (he’d have to spice things up by claiming the procedure was botched because the doctor was drunk or something). But I’m pretty sure that Mr. Kim would have been punished for something–he sounds like he was completely off his rocker.

And look at the result of Mr. Kim’s conviction: Because what he said was true (which results in less penalties than if the defamatory statement is a lie), he was fined 3 million won (a couple of thousand dollars). I could totally see someone who started up a vendetta against a clinic in the United States facing a similar penalty–it just wouldn’t be for defamation. Harassment, stalking, interference with commerce–there’s plenty there to protect a business from a vengeful client.

Indeed, if an American court found against someone who was hassling a clinic that botched his plastic surgery, the logic behind it would be very similar: You’ve gone past the point of fair restitution, you’ve gone past the point of serving the public interest, you are just engaged in some vendetta. That is not OK.

Certainly in the United States (and I’m guessing this would be true in Korea as well) if Mr. Kim hadn’t been the one who was actually damaged–he just thought someone else might have been damaged–the likelihood of him being found guilty would be much higher, and the penalty would be more severe.

Which brings us to Block B: Back in 2012, the guys said that they didn’t like rice pizza.

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This was seized upon and repeated over and over again by people who were in no way damaged by this statement as evidence that the members of Block B were horrible people.

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It seems pretty reasonable that this would become legally actionable as defamation in Korea very quickly (even though no one is questioning the fact that Block B said they didn’t like rice pizza).

After all, what is the public benefit of telling everyone that Block B doesn’t like rice pizza?

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It’s not just that the public benefit is obscure–people are bringing this incident up specifically because they want everyone to believe that the members of Block B are horrible people!

Hm, that seems like it would fit the “purposely to disparage” standard very nicely….

This gets even more interesting with something like the Thailand scandal, because the common refrain is that Block B did not engage in self-reflection.

Public apology, head-shaving, many months on hiatus, a nervous breakdown, repeated mentions of how tough it was, much more appropriate responses to other disasters…at what point would a Korean court decide that claiming that Block B did not engage in self-reflection is a lie?

Why would that be interesting? Because while you can be convicted of defamation in Korea if you tell the truth, if you’re convicted of it for telling a lie, the penalties get much more severe, including jail time.

Indeed, one of the Tablo haters went to jail for falsely claiming that Tablo had never attended Stanford University. Tellingly, another who was convicted of defamation appealed, but the conviction was upheld. Right now, it looks like one of the Seo Ji Soo haters may well go to jail for defamation because they appear to have violated the terms of their settlement.

I think it says something about the K-Pop subculture that the people in it are that out of touch with Korean law–even when they get into trouble, they can’t seem to accept that they may have done something illegal, so they make the situation worse. I’m guessing it’s a result of that whole history of the industry encouraging fans to think of K-Pop idols as some lesser form of human being who exists only for their pleasure. It’s honestly a little alarming to see people scoff at the threat of legal action when the law is so strict and other people have so recently gotten into trouble for the same thing.

Render unto Caesar…..

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This sort of thing:

just really needs not to happen. Seriously, the person is asking for one line: “KOR/ENG translation by XXX.” It’s not remotely worth starting World War III over. Just make them happy and give it to them, and then you’ll get your English translation and you’ll be happy too!

It seems like this kind of disrespect for fan labor has been cropping up quite a bit lately. Translating and subbing is hard work and is very time-consuming, which is why translation teams flake out so often–they start out thinking this task is manageable, and then three weeks later, they realize that there’s no way. Trolling, abuse, and being a dick about credits only makes it more likely that the translator will look at the next episode and think, “This is so not worth doing.” [ETA: And, I should note, nothing expresses appreciation for a translator quite like a donation.]

The other thing I’ve noticed is this trend to “recolor” fan-taken photographs. The idea is to counter shadism, which is of course a real problem that deserves addressing, but you have to consider how your tactics are going to be received. (Did you know that death threats are never ever a good idea? It’s true! Not ever!)

The main thing is that fan photographers are accustomed to having their materials screwed with, because it happens all the time. (For example, quite recently the P.O/Taeil fan photographer Monkeyfish had a photograph used to illustrate a malicious post about the two.) In particular, having someone else “correct” the color of a photograph or even a painting happens a lot, and that’s HUGE trigger for visual artists–it’s regarded as extremely patronizing, akin to rewriting a novel to “correct” the author’s prose. As a result, fan photographers are not likely to see efforts to counter shadism by editing the color of their photographs as anything other than some random asshole being a dick.

And while someone doing an unauthorized translation may not have a lot of options other than no longer doing them and pulling their subbed videos down (which tends to happen anyway), photographers typically do have legal copyright for their work. The serious fan photographers in Korea sell their work on a regular basis, and I have seen them threaten legal action against people who alter or use their work without permission.