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Min Son of Hanol IP & Law explains how the Korean boy band BTS helped reshape unfair competition law and the protection of publicity rights in South Korea

Readers may have heard of names such as Squid Game, Blackpink, Baby Shark, and BTS. Collectively called K-content, such K-pop, K-drama, and K-culture are gaining popularity not only in Korea, but all over the world.

With the expansion of this content’s power and social media activities such as YouTube and social networking, the number of cases in Korea where another person’s identity has been commercially misappropriated has grown. This has also led to legal disputes.

The BTS case

One of these cases involved the popular boy band BTS. A publisher produced and sold photocards and pictorials of BTS members without the authorisation of BTS’s agency. The agency sued the publisher under the Unfair Competition Prevention and Trade Secret Protection Act (UCPA) before its revision.

The case went to the Supreme Court, where it was decided that the publisher’s act constituted an act of unfair competition under the supplementary catch-all provision of the old UCPA (Supreme Court Decision 2019Ma6525, March 26 2020).

When the above decision was made, Korea did not have an explicit statutory provision to protect the right commercially to use personal signs such as portraits and names of a person, so the court had to rely on the catch-all provision. However, in the above ruling, the court presented specific criteria for judgment on the infringement of publicity rights for the first time, and its rules were later reflected in the revised UCPA.

The revised UCPA

The revised UCPA came into force on June 8 2022. In the revised UCPA, an act that infringes a so-called publicity right has been added to the acts of unfair competition.

Specifically, in Article 2(1)(l) of the revised UCPA, an “act of unfair competition” includes an act of infringing another person’s economic interests by using a celebrity’s portrait, name, voice, signature, or other identifiable signs for one’s own business without authorisation and in a manner contrary to fair commercial practice or competition order.

The right holder whose rights have been infringed can claim civil damages, and a preliminary or permanent injunction. They may also pursue administrative remedies for corrective action under the UCPA.

Unfortunately, the UCPA protects only celebrities’ and famous persons’ names, portraits, etc, and the publicity right of a layperson is not protected.

In this regard, it is worth noting that a bill to amend the Copyright Act has been proposed to the National Assembly and is awaiting passage. The proposed Copyright Act expressly provides protection for the “publicity right” under the name of the article “property right including portrait right”.

“Portrait etc” is further defined as “a person’s name, portrait, voice and other traits similar thereto”. As the proposed Copyright Act does not require the portrait, etc to be widely recognised in Korea and have economic value, the expected scope of protection is wider than that of the UCPA in this regard.

Grey zone

Publicity right has long existed in a grey zone of protection. Until now, those whose publicity rights had been infringed have tried to remedy this through various channels such as trademark law, copyright law, unfair competition prevention law, and civil law damages based on constitutional infringement. But none of these has provided a satisfactory solution.

Now with the revised UCPA and the Copyright Law to be introduced, it is certain that the publicity right will be better protected in Korea.

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