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.
It’s like buying a gaming console and then selling it. The product is legal. There are no issues in reselling.
Although rules and law about the black market do vary from country to country, so always check at home first.
But what does this all have to do with Fan Art, and Fan Fiction you may ask...
Fan Art
The first thing I really need to talk about and get out of the way, is art-theft.
People who post others' art or fan art.
When a fan artist creates an imagine, they gain Neighbouring copyrights. Copyright of an image rests with the original producers of it (so the people who own the image used as a reference) but when someone changes it or otherwise improves on it, Neighbouring rights apply.
Suing over Neighbouring rights is troublesome for Fan Artists and only really applicable if there are damages to claim, so if an income is generated from the art, but reposting without permission is still morally wrong! And if a fan artist is willing to fund a trial, you can still get in trouble.
So, you want to post someone's fan art because it looks cool? Always ask for permission! Never claim it as your own!
And then, if you get permission, credit them properly.
New let's look at the part of the law that applies to Fan Artists.
CASE 5
Min Yoonji is an artist who reproduces BTS photos as fan art. Times as an artist are tough, but Min Yoonji’s realistic fan art gains a lot of interest, so Min Yoonji decides to print her BTS fan art and sell them to interested ARMYs at an affordable price.
First off Min Yoonji bases her art directly on photos. This creates potential Copyright trouble with the photographer, unless Min Yoonji has permission to use these photos.
Fans who post personally taken photos usually also clearly state whether permission to use the photos is granted. Sometimes they just want credit for the photos, other times, they don't allow it all.
Such a legal case is only worth pursuing for the photographer because Min Yoonji makes a profit off these reproductions.
Second, Min Yoonji is selling a representation of BTS without permission from BigHit or BTS.
Min Yoonji is hence generating an income illegally and may be sued both by the photographer of the reference photo and by BigHit.
CASE 6
Min Holly makes chibi fan art of BTS and sells it. Their chibi fan art collection is original and not based off any stock image. The photo "chibi BTS at the beach" sells well.
While it's not based off a photograph, Min Holly's fan art is still a clear representation of BTS and Min Holly also uses BTS's name to promote and sell the fan art.
All of which is against the law.
CASE 7
Kim Namseon sells her fan art, but doesn’t mention BTS by name during sales. However any fan seeing the fan art, will recognise the members immediately, and the fan art is uploaded on BTS related social media to gain attention.
What do you think?
Kim Namseon, while slightly better than Min Yoonji and Min Holly, is still infringing upon BTS's Right of Publicity.
Since Namseon's fanart are promoted as being BTS on social media, the resulting income will still have been made because of BTS's reputation.
CASE 8
Kim Monie makes fanart using BTS photos as original source but sells the art elsewhere without mentioning BTS. The pieces have titles like "Blue Rain" and the images are different enough from the reference images of BTS members for only hardcore fans to make the connection.
Finally someone who does it right!
This is completely within the law.
BTS are simply an inspiration to Kim Monie, who does her own thing and doesn't generate an income by using BTS's name or reputation.
A true artist - I applaud thee Kim Monie!
Fan Artists only get into legal issues when they sell their art.
Although getting permission is always best before reproducing something, especially if it's a realistic reproduction with a very clear reference image. But don't worry artists, you don't get into legal trouble unless you sell your art.
However – there is one situation in which a Fan Artist can get into serious trouble without even selling their art.
It relates to a very vile and complicated part of the law called Defamation.
In South Korea honour is everything, so cases of Defamation (which are normally harsh) can turn particularly ugly.
Let's look at an example of defamation.
CASE 9
Kim Soojin is a Fan Artist who doesn’t sell her art. Kim Soojin is famous for drawing sexually explicit scenarios of the BTS members.
This may be considered defamation, which is the act of damaging someone's reputation.
In western countries, defamation is usually part of Civil Law, however, in South Korea, defamation is part of Criminal Law.
Defamation is a crime and you can be sent to prison for it.
In South Korea, defamation also applies to cyber defamation. Which means that the anonymity on the internet doesn't protect you.
You can even be pulled to court for writing malicious comments online.
Another difference we need to be aware of is that in the West defamation cases are usually solved by proving that the defamatory statement was true, at which point the accused is off the hook. However... not in South Korea.
In South Korea true statements can also lead to prison sentences if they are defamatory.
Intent is usually the only way to dismiss a defamation case, and it's extremely difficult to argue.
If BigHit and the court both decide that Kim Soojin's fan art is defamatory due to its sexually explicit content, she can be pulled to court and may even face prison charges.
Fan Fiction
Same rules apply for Fan Fiction writers as for Fan Artists, although Fan Fiction writers rarely sell their work.
Defamation is a very real issue that many fan fiction writers get into trouble for, unless they're careful.
So I urge you, Fan Fiction writers (especially you smut writers), to swipe up a little and read Case 9 again.
Legality of Gifs
You might have noticed that I haven't put credits for any of the gifs I've used here.
Legally speaking, gif making is very troublesome. It's a very recent art form. It's also a short video form so it's difficult to argue in court if such a case should ever arise.
Since it's a new art form it's very shifty territory and it’s very possible that it will soon need to be treated in legal terms, but currently gifs are free market.
No ownership, neither to original owners, nor gif makers are legally needed.
Currently there are no legal demands concerning gifs and gif making. It's a free fantastic world full of kittens and unicorns.
Which means that you can make gifs without having to worry about lawsuits.
As a gif maker you aren't breaking the law, but you also aren't protected by the law.
However, for the sake of being 100% within the law, the safest is always to include full credits, which is not only the name of the gif maker, but also the source material and the owners of the source material.
If credit is due for gifs then it need to be given to the gif creator AND the original sources of the gifs AND the owners of those sources.
Plus you'd have to have permission from all of these to use the gif.
I’ve made this gif to demonstrate.
Credits:
gif maker: cristal_green.
Source material: BTS Live: Sope
Owner of source material: Vlive
Depicted: J-Hope and Suga of BTS
Property of BigHit.
Those would be the proper credits, which are some pretty long credits. And even so it's not entirely perfect as I don't have permission from any of these people to make the gif.
But as I said above, nothing illegal about gifs... yet.
I would love to give proper credits (gif makers, source material, and owner of source material) however exclude any one of them and it wouldn't be proper credits.
The problem usually lies in finding the gif maker as gifs are near impossible to back track. Personally, I rarely find gifs from the gif creators themselves, so often they arrive to me uncredited.
I highly appreciate gif makers, however legally speaking, it’s free territory.
I suggest to all of you gif makers to include a small watermark on your gifs so you will get proper credits and people will also be able to find you for more gifs and to show their appreciation.
That's all folks.
To end, here are some general rules to stay safe:
1. Don’t sell BTS content, even if you made it yourself. If it's labelled BTS, don't sell it.
2. Where possible, check for permission before using a photo as a reference.
3. Don’t create content that can be regarded as defamatory.
I hope this legal adventure was useful to you. Please don't hesitate to send in your thoughts or questions.
Part one: Know the Law and Stay Safe
Read More :
Love Your Bias Not Everything They Do We talk about the dangers of defending our bias to the bitter end and why BTS’s Love Yourself comparing is so important.
The Big 3 You might have heard fo the Big Three Companies (YG, SM & JYP) but did you know that the Big Three used to be the Big 2? And how they came into existence?
BTS and Military Enlistment We talk about what Military Enlistment means and what it might mean for BTS
Why the B-Free Controversy is my Favourite BTS Moment That controversy made me a Suga stan, and here is why…
References:
English language sources:
English source on defamation in SK
English source on defamation in SK 2
English source on defamation in SK 3
Korean sources:
Precedent to Rights of Publicity
Precedent to Rights of Publicity 2
Copyright and Neighbouring Rights
Please keep in mind that I am not a Korean lawyer. I have done this research purely for myself and wish to share it here with you.