A K-pop-based Explanation of Music Copyright Part 9.

Posted by Joseph Hwang Joseph Hwang 8/20/2024

A K-pop-based Explanation of Music Copyright Part 9.

Joseph Hwang

1. Parody and Copyright Infringement

Korea's system for managing and using music copyrights is through trust management organizations approved by the government. Music rights holders sign a contract with the trust management organization to transfer their property rights to the organization for the membership period, and the organization distributes license fees to the rights holders in exchange for the transferred rights. When the contract with the trustee organization ends, the transferred property rights revert to the original music rights holder.

This system is convenient for music rights holders without legal knowledge, but only property rights are subject to trusteeship. Because moral rights are inalienable, for that reason, only the author can hold them and not transfer them to others.

However, in the late 1900s and early 2000s, compilation albums were popular in the South Korean music market, and later, remake albums that reproduced already popular repertoire were welcomed. In this background, Lee Jae-soo had been known as a tone-deaf singer, his management company released a music video that parodied the title and lyrics of K-pop legend Seo Taeji's hit song “Come Back Home”. This was the first case in the K-pop industry, in which the difference between parody and copyright infringement was determined in court.

2. Shortcomings of the Music Copyright Trust Management System

The music copyright trust management system is the method to transfer property rights from the rights holders to the management organization only for the period of the trust contract, thus the organization performs the license work on behalf of the rights holders and shares the profits. Therefore, property rights are transferred to the organization instead of the rights holders not having the transferred rights only for the period of the trust contract, and the rights return to the original rights holders when the contract ends.

This system has the advantage that the authors can concentrate on producing music by entrusting their licensing tasks to experts. On the other hand, the trust organization cannot exercise the author's moral rights together, if the original song is remade by a third party, which is its disadvantage.

Remaking music means that the original song is transformed and edited. Such changes may infringe on the "Right of Integrity" among the moral rights of the original song's author. The property rights, which include moral rights, must be licensed by the rights holder if users want to remake music. However, the trust management organization does not have the moral rights of the original songwriter. This creates a contradiction and inconvenience for music copyright users.

3. “Come Back Home” Case

Seo Taeji's hit song “Come Back Home” is a repertoire that expresses understanding, empathy, comfort, and recovery for runaway youth. Lee Jae-soo made caricatures of the title and lyrics of the song, which have a social message and serious content, comicalized and parodied. However, Seo Taeji did not grant Lee Jae-soo the moral right to parody the song because he believed that Lee Jae-soo's parody was a remake for commercial purposes. Regardless of this situation, Lee Jae-soo's management company obtained only the property rights from the trustees of the song and proceeded with the production and release despite Seo Taeji's written refusal. It was the commercial use of the parody that Seo Taeji took issue with, so in 2011, Seo Taeji withdrew his lawsuit against Lee Jae-soo but filed a lawsuit against the management company. Seo Taeji also filed a lawsuit against the Korean Music Copyright Association (KOMCA) for terminating the trust agreement and returning the royalties earned by continuing to license the song even after the termination of the agreement, ignoring the original song's author and approving the property rights, despite not approving the moral rights.

Seo Taeji litigated with KOMCA for 12 years and eventually received the royalties, and the court recognized the infringement of the right of integrity due to parody. Through the litigation process and court ruling, the K-pop industry was able to get the court's stance on parody and copyright infringement standards. Before this case, there were no court decisions in actual litigation, only theories about parody in copyright textbooks. In this theory, the standard for judging parody and copyright infringement is whether there is market competitiveness between the original work and the parody, i.e., if there is a conflict of interest between the original work and the parody in the market, there is a competitive relationship.

In the “Come Back Home” case, the South Korean court fleshed out this criteria further in its ruling. The court reasoned that the parody, which modified the lyrics of the original “Come Back Home” song, created a musical imitation but did not create new value, and that the protection of a parody work is only for satire of the original work, not for parodies that go beyond the original work to social reality. Furthermore, the court ruled that Lee Jae-soo's parody could not be protected as a parody because he used the original song for commercial purposes and the extent to which he quoted the original song could lead to a decrease in the social value of the original tune or a potential decreasing in demand. As a result, copyright infringement was recognized.

* References and quotations:

https://namu.wiki/w/%EC%84%9C%ED%83%9C%EC%A7%80%20%EC%9D%B4%EC%9E%AC%EC%88%98%20%EA%B3%A0%EC%86%8C%EC%82%AC%EA%B1%B4

https://blog.naver.com/subsky21/220039538164

https://m.entertain.naver.com/article/001/0000109904

https://www.lawtimes.co.kr/news/71467

https://www.lawtimes.co.kr/news/75465

Series Articles

Part 1.

https://www.musicbusiness.co.kr/2024/08/a-k-pop-based-explanation-of-music.html

Part 2.

https://www.musicbusiness.co.kr/2024/08/a-k-pop-based-explanation-of-music_01103635833.html

Part 3.