Introduction to the Right of Publicity in South Korea

The legal concept of a right of publicity is relatively a new one in the Korean legal system.  About 25 years ago, affected by the U.S. entertainment law, the Korean legal society began to theorize the right of publicity, and finally the lower courts of Korea approved the right of publicity right as an exclusive property right independent from the traditional right of privacy, although there is no ruling from the Supreme Court and no express provisions therefor are yet legally established.

According to the lower court rulings, the right of publicity is defined as a property right to use the name, portrait or any other identity of a person for commercial purpose and to limit their use.  The court have ruled that the right of publicity

Court Ruled Starbucks Korea Free to Play Copyrighted Music in Its Outlets without Paying Royalties

A few days ago, Seoul Central Court ruled in favor of Starbucks Korea in a copyright lawsuit filed by the Korea Music Copyright Association alleging the Starbucks Korea should pay royalties in playing copyrighted music in its outlets.  I wrote some posts regarding this issue here and here.  The legal issue was whether playing copyrighted music substitutes a mail business of Starbucks Korea.  That is because

Fund Buyers Keep Filing Lawsuits against Fund-Sellers Alleging So-called “Irresponsible Sale”

Recently there can be seen so many lawsuits are being filed against domestic banks with regard to the bank’s irresponsible fund sale.  The Korean fund buyers are alleging the losses in the funds which are still on-going were caused by the fund-sellers’ not informing sufficient information on the risk and possibilities of losses when they put the money to the funds.

As a matter of law, Korean court has ruled that the banks are obliged to inform the customer of the structure of the investment such as fund or option transaction and the risk of possible losses sufficiently when they solicit the customers for investments.  If they neglect that obligation, it constitutes a breach of contract and

Two Korean Internet Portal Giants Prosecuted for Aiding Copyright Infringement

Last December 23, the Seoul Central Prosecutors’ Office prosecuted NHN corporation, the operator of Naver (the largest Internet portal in Korea) and Daum Communications Co., the operatot of Daum for copyright infringement.

The prosecutors said two Internet portals have been aiding copyright infringement of their users by ignoring copyright holders(The Korea Music Copyright Association and the Korea Association of Phonogram Producers) request for removing illegal music files on their sites and taking no actions.  The prosecutors found 10 millions of uploaded music files

Lone Star Sent a Letter to Korean Government Notifying Potential Lawsuit for Damages by KEB Sale Deferment?

Last week, Korean government announced that it would initiate reviewing process for the approval of KEB sale soon.  Interestingly enough, today it was reported also that before the government’s announcement, Lone Star Fund had sent an official letter to Korean government regarding government’s approval issue on the long-waited sale of Korea Exchange Bank(KEB) from Lone Star Fund to HSBC bank.  Lone Star Fund and HSBC had entered into the stock purchase agreement and the deadline of the agreement is coming on the end of this July.  It was reported that Lone Star Fund stated in that problematic letter that if the Korean government kept delaying the approval, the fund would file a lawsuit domestically and internationally against Korean government for the compensation of damages by the sale’s deferment(here is a news article).

Well, one, especially western people, can say that there would be no problem in sending a letter to the other party noticing potential legal disputes.  However, it is quite unusual in Korean legal culture that a private enterprise warns the government stating otherwise it would sue the government.

As a matter of law, the fund would be permitted to file a lawsuit to a Korean court, however the chances are that the fund would not win the case.  Under Korean law, in order for the fund to win the case, the fund must prove there have been an unlawful act of Korean government in delaying the approval.  But, the approval itself is a right, not a obligation, of the government provided by the law and there have been lawsuits affecting the validity of the ownership of KEB by the fund, which have made Korean government hold the approval procedures

Having No Working Visa Does Not Mean You Have No Right Under Korean Civil and Labor Law

Recently a foreigner asked some questions to us regarding employment issues.  He has a problem in his Visa status here in Korea and the employer refused to pay some amount to him, a matter of quite frequent occurrence here in Korea, which I’m afraid of though.

Basically foreigners have the same rights as Koreans under Korean civil and/or labor law. Even though the employee does not  have a valid working Visa, it does not hinder him or her from executing his or her right under Korean law.

If the company has no right to withhold the money earned by the model, it constitutes a breach of contract and/or a unlawful act.  The employee can file a lawsuit or request a preliminary injunction against the company and his assets.

Please be noted, however, that the company could threaten the employee saying “Unless you keep quiet, I’ll inform the Immigration office of your illegal stays in Korea and make you expelled!” as is often the case with vicious small entrepreneur in Korea.  Practically it is the primary reason that makes many foreigners working without visa hesitate to take legal

Internet Portals Including Yahoo! Korea Lost a Libel Suit for a Post on Their Websites

Are Internet portals liable for a defamation caused by articles posted on their web pages?

The Seoul High Court said Yes in a libel suit brought by a man who claimed to have been suffered from an article on Internet portals’ website allegedly saying he had made his ex-girlfriend die.  After the article appeared on-line, hundreds of Internet users identified him and moreover posted his photograph.

The Seoul High Court ordered four Korean major portals ― Naver, Daum, Cyworld and Yahoo! Korea ― to pay a total of 30 million won ($30,000) in compensation to the plaintiff.

The court found the major portals should be regarded as “semi-media” spreading information to unsuspecting persons, as they have rights to position news on the screen and invite tens of thousands of readers everyday.  The court ruled that Internet portals should decide whether the contents of a posting defame a person’s character and should either delete or block access to those postings