Today we shall treat the legality of:
Merchandise
Fan Art, Fan Fiction
and Gifs
Although what I shall discuss here concerns the South Korean law, let me remind you that even if you aren't a Korean citizen or even a resident of the country, you can still be indicted as the people involved are Korean citizens.
During part 1 of Legal Talk with BTS, we covered all parts of the law that applies to the act of taking a photo.
Let's refresh our memory from the last lesson...
The Right of Portrait, briefly speaking, is the Right to be photographed and also the Right to NOT be photographed. This implies that you should always ask someone before taking their photo, even a celebrity.
Also...
Everyone who shoplifts doesn't get arrested, but it is still illegal.
Doing something against the law doesn't necessarily mean that you'll be punished, but it does mean that you can be dragged to court.
It also means that someone else has been hurt by your actions. This time, like the last...
The people who get hurt are Army, BigHit and BTS.
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.
That sums it up, so let's get into it!
Closely connected to the Right of Portrait is the Right of Publicity.
The Right of Publicity is the right to use a name or representation (such as a photo) of a person for commercial use or publicity use.
It is particularly crucial for celebrities to keep this right in check as it directly affects their income.
If a product is sold using a celebrity's portrait without the celebrity's permission, the seller is illegally making money off that celebrity's efforts.
The celebrity may sue for loss of property, and even deprivation of economic benefits.
Deprivation of economic benefits means that the celebrity made no money from their portrait being used although they could have and should have.
These are Civil Law cases, which means that the celebrity, or their company, has to personally take legal action.
Celebrities tend to take their Right to Publicity seriously as the protecting of that right is their main income.
So there have been many legal cases over Publicity Rights.
Famously a few with Korean celebrities suing plastic surgery clinics for using their photos without permission. The plastic surgery advertisements in question did not imply that the celebrities had enhancement done, but was using the photo as an enticement for possible consumers to change their appearance to look like the depicted celebrities.
Most K-pop idols don’t exercise their own Right of Publicity, but sign this right over, at least in part, to their company when they sign their contract.
This enables their company to make arrangement on their behalf, and schedule commercials, photoshoots, merchandise, etc.
It also enables the company to sue for Rights of Publicity on behalf of the celebrity.
In brief words:
In order to use the name or photo of a celebrity for commercial or promotional purposes, you MUST first gain permission.
Often when permission is granted, it comes with a monthly or yearly fee to pay to the entertainment company or celebrity. A contract usually also limits the rights of use to the specific promotion or item(s) discussed, and likely also guarantees a high quality on the discussed product.
Without such an agreement and contract. Selling something with BTS name or face on it, is illegal.
According to a recent issue over such a contract involving BigHit and BTS, the fees payable to BigHit for the Rights of Publicity of BTS in this case was a monthly fee of 300 million won (nearly 300 000$ or 250 000€).
Most K-Pop merchandise makers neither have the funding to get such a contract nor care to uphold the resulting demands of quality.
So most K-Pop merchandise sellers violate the law and illegally use the names and images of celebrities.
We shall now look at examples specific to our four categories. Even if you're a Fan Artist only interested in the legality fanart, I still suggest that you read them all to gain proper context.
Merchandise Examples
CASE 1:
Jeon Jungsook is in need of pocket money to buy the next BTS album. So she has found some photos of BTS online, and decides to print them on photo paper and sell them to other Army.
Do you see the issue?
Jeon Jungsook , lovely army as I'm sure she is, doesn't have permission to sell photos of BTS.
It's perfectly fine to print photos for your own personal use.
However, selling those photos or merch without permission is illegal.
Jeon Jungsook can get sued by BigHit or BTS for it. But they're also violating someone else's rights. The photographer of the photos can also sue for damages.
CASE 2
Baek Jimin has taken some really nice photos of BTS, and decides to sell them in a photobook to raise money for a fan project.
Although Baek Jimin owns the photos, having taken them herself, she does not have the Right to Publicity.
A photobook with BTS photos uses BTS's name and portraits without permission. Depending on the photos, they may also have been taken under illegal circumstances.
Since Baek Jimin doesn't have a contract with BigHit to sell this photobook, it is against the law.
CASE 3
Jung Hojung has taken amazing photos of BTS and wants to further BTS’s reputation. So Jung Hojung rents out an art gallery and makes a photo exhibition called “Days with BTS”. To pay for the space, there is an entrance fee of 5000 won.
While it's lovely to want to spread BTS's name and reputation, even this is actually against the law. Because it is making a revenue. Even if the entrance fee is just to cover the expenses of the room, it is still profit, and hence problematic, unless Jung Hojung has entered a contract with BigHit to be allowed to put up the exhibition.
CASE 4
Kim Taehyun buys a pencil case from Vendor A. The pencil case has BTS’s faces on it and is sold as “BTS pencil case”.
Found the issue?
Except for supporting someone who isn’t affiliated with BTS or BigHit, Kim Taehyun has done nothing wrong.
Vendor A, however...
Vendor A is overstepping the law by selling a product that most likely hasn't been approved by BigHit and without paying BigHit and BTS for the product and sale.
While the action of making and selling such products without permission is illegal, buying the products isn't.
The Rights of Publicity is protected under Civil Law and not Criminal Law. The products themselves aren't illegal, the act of selling them without permissions is.
But while it is not illegal to buy these products, keep the following in mind:
Not a single cent of the money you spent on that nice T-shirt or calendar or poster actually goes to BigHit and BTS.
But then how do you know when a product is official or not?
I'm sorry to say that most products are unofficial, unless endorsed directly by BigHit and BTS.
Rights of Publicity are expensive, and most vendors can’t afford them, especially for a group like BTS.
Entertainment companies are also usually choosy about what products to sign off on, as it needs to be a certain quality for the sake of the group’s reputation.
On that note it's time for a little talk about...
Second-hand Official Merchandise
Sellers of second hand merchandise are in a completely different boat, since they are reselling official and authentic products, endorsed by BigHit from which BigHit and BTS have already profited.