I decided on this series of blogs, because I love my fellow fans, and I want to help keep you out of trouble.
I've been reading countless of Korean law codes and researching for a few months now, because I had questions about the legality of certain parts of being an fans, and about where I stand in terms of Korean law.
I write this to help others, to help you, make informed decisions as fans!
My hope for the K-pop fandom is always that we can rise above the norm and set a positive example for others to follow.
Something being against the law doesn’t always mean that someone goes to jail for doing it or has to pay fines and damages.
Every driver who takes a red light doesn’t get pulled to court, neither does every person who pirates music, but both are still illegal.
The people who do those things know that they're against the law, my hope is to give Army the same opportunity to understand the law.
Doing something against the law doesn't necessarily mean having committed a crime, but it means that you are in danger of being detained or having to pay damages or otherwise have to face consequences as a result of your actions. But more importantly, it means that you have likely hurt someone else. So it is always best to be safe and stay within the legal bounds.
In the cases I shall discuss here, the people who get hurt are BigHit, BTS, and Army.
All of them are people we want to protect.
I shall use BTS and Army as examples here, but this applies to ALL FANDOMS and I hope that you will read it with that in mind. This applies no matter the group and fandom.
What I shall discuss here concerns parts of the South Korean law that relates to BTS and Army (not news reporters or BigHit staff, but Army). What I shall discuss are part of the law that I’ve seen many Army cross, most (I hope) not even realizing that what they’re doing is against the law and is potentially hurting BTS.
And you may think that these things don’t apply to you since you aren’t South Korean and that these things are legal in your country… First: I doubt all of this is legal in your country, and I’d really look into that, and second: BTS are still Korean entertainers so my concern is what applies to them and fans who come in contact with them.
It'll be divided in two blog posts. So, let me begin part one, with a title that may shock you:
Taking photos of BTS can be against the law?
It can be.
In the case of BTS, it isn’t always, for regular Korean people, it often is. It's not a crime, but you do run a risk if you use or upload a photo of South Koreans without the approval of the people visible in the photo.
If you have Korean friends, you’ve probably seen that their holiday photos often look like this photo of Jimin.
Everyone’s faces in the background is blurred out if they’re close enough to the camera to easily be identified.
This is because of the Rights of Portrait in Korean law.
Article 750 of the Civil Law of South Korea details the “Rights of Portrait” (초상권). The right to portrait is a legal personal right in South Korea that means that each person has the right to their own portrait (a portrait meaning a photographic representation of themselves).
If someone’s portrait is being used (uploaded online, or sold) without their permission, the person whose portrait has been used may claim damages.
This is usually an infringement the Rights to Publicity, which is closely related to the Rights of Portrait. But that is something I shall discuss more closely in part 2 of this blog series (merchandise). Here, in part 1, we will focus on Rights and legality concerning the act of taking and uploading photos.
There has to be damages caused by the photograph for a victim to sue, though.
Often there isn't any damage from a simple photo, unless it is sold, or used for commercial benefit. So if the photo is just uploaded online…?
Well, in such a case, you CAN still be sued by someone in the photo. Most likely you won't be, but you can be.
Say for example: in the background of your holiday photograph is a young man and a woman, hugging each other. The man is clearly identifiable from the photo, and he is married to someone who is not the woman in your photograph. Say that his wife happens to see your photo and decides that she can’t trust her husband, thinking that he cheated. No matter how much her husband explains that the woman in the photograph was a childhood friend he had thought was dead until that moment, his wife doesn’t believe him and decides to divorce him.
You, having posted the photo online, would be liable to a lawsuit from the recently divorced man.
There are less K-drama like examples too, but I think this proves the point.
To be safe, here is the core of the Right of Portrait:
The Right of Portrait is the right to be photographed and also the right to NOT be photographed.
A portrait or photograph in this case encompasses any physical feature that may identify the person, so for example V’s elephant moles, or Jimin’s small hands.
But BTS are celebrities, so the situation is a little trickier…
In 1995, a judge decreed that a person who is a public figure should give some lenience as to their Right of Portrait, for their photograph to be used in places such as in Newspapers, for example.
(Otherwise imagine the chaos for writing news articles, and the chaos if everyone at a red carpet event had to give their explicit permission every time their photo was taken)
But...
If the usage of the photograph, or the photograph itself infracts upon the celebrity’s honour, or in any way goes against Article 10 of the Constitution, even a celebrity may claim damages.
Article 10 of the South Korean Constitution is very closely linked to the Right of Portrait and it is why that particular Right is such a huge deal to South Koreans. Article 10 of the Constitution states:
“All citizens have a right to happiness and dignity as Human Beings.”
Short summary: You do not mess with a South Korean’s dignity or honour.
Let's take a look at a few simple photographing cases that may happen to Army.
CASE 1
Army A walks down the street, and spots a BTS member on the street. Army A snaps a photo of the member and uploads the photo to their social media.
You know what part of the law Army A overstepped, right?
Yep! It's the Rights of Portrait. Army A doesn't have permission to take a photo and much less to upload it.