DBSK’s Contract under SM from the Perspective of International Human Rights, Labour and Intellectual Property Law

Spanish Translation of this article done by Bea can be viewed (traducción en español aquí) HERE

DBSK’s Contract under SM from the Perspective of International Human Rights, Labour and Intellectual Property Law

By: Jimmie of TheJYJFiles

Introduction and Disclaimer

First of all, it’s only fair to my readers to reveal upfront from the start that I am not (yet) a lawyer, nor have I studied Korean law. I have nonetheless agreed to broach this subject because my work requires me to be intimately familiar with the norms and legal principles that I will be addressing here in relation to DBSK’s original contract—namely, norms and principles of international human rights, labour and intellectual property law.

Secondly, the Constitution of the Republic of Korea (aka South Korea), like that of most countries, requires that the first recourse in any legal proceeding be Korea’s national laws and statutes. That is toHowever, an analysis from the perspective of relevant international law is more than casually useful, because international law serves as a kind of “threshold guarantee” for national law. That is to say, countries that have signed and ratified treaties, though often encouraged to go above and beyond its protections in their national law, are obligated to NOT FALL BELOW THEM. And so, the fundamental provisions of international human rights treaties, for example, are found transcribed in most countries’ constitutions. In addition, State parties to a treaty are not only obligated to observe the letter of the treaty, but also, under Article 18 of the Vienna Convention on the Law of Treaties (1969), are obligated to “refrain from acts which would defeat the object and purpose of a treaty…” even if a country hasn’t yet ratified it or the instrument hasn’t yet entered into force.

Thirdly, in the interests of harmonising with the identity of the destined platform—which is, after all, an op-ed blog and not an academic journal—I will restrict myself to the norms and refrain from going into the case-law and/or commentary thereon issued by legal and intergovernmental bodies. If anyone would still like the extra commentary, you may contact me and I shall try my best to direct you to the right sources. Now, without further ado…

I. International Human Rights Law

Of the international human rights treaties that the Republic of Korea has ratified, the most relevant to this case also happen to be the most fundamental. They are the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) of 1966, which are historically and content-wise derived from the Universal Declaration of Human Rights (UDHR) of 1948. Together, these three form what is referred to as, “The International Bill of Human Rights.” The UDHR is technically not a treaty and as such is not legally binding. However, through a combination of long practice by countries and collective consensus, the rights under the UDHR are recognised as custom and therefore binding on all member States of the UN. [i]

A. Right to just and favourable conditions of work

Article 23 of the UDHR grants, “Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment”; “Everyone, without any discrimination, has the right to equal pay for equal work.”; and “Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection.” This is solidified as an obligatory norm in Article 7 of the ICESCR, where the right to “the enjoyment of just and favourable conditions of work” as well as “Fair wages and equal remuneration for work of equal value”, “equal pay for equal work” and “safe and healthy working conditions” are equally recognised.

Does SM’s contract measure up? Articles 9 and 10 of DBSK’s contract draws out in detail the income distribution and pay for the members of the group. In the very first version of the contract, DBSK members had to sell at least 500,000 albums in order to receive 50,000,000 won (a little less than 50,000 USD) ON THE ALBUM AFTER; they had to sell at least 1,000,000 units in order to receive 100,000,000 won (a little less than 100,000 USD), once again, ON THE ALBUM AFTER the one that sold 1,000,000 units. According to an investigative journalist from the Joongang Daily, DBSK’s income from album sales under the latter arrangement represent a mere 0.44% of total sales made from their albums.[i] And while the amendment allows SM to increase the profit distribution from album sales 100% ($50,000 → $100,000 if at least 500,000 units sold; $100,000 → $200,000 if at least 1,000,000 units sold) FIVE YEARS AFTER the sale of the album in question, DBSK’s income would still amount to only about 2.2% of the total amount made from album sales. Furthermore, if an album of theirs is released in a repackage edition, with a couple of new songs, the members are only given the direct proportion representative of profits from those new songs. So, for example, let’s say a repackage album of DBSK has 10 songs of which 3 are new; SM would calculate the amount of money made solely from those 3 songs and give that to DBSK whilst keeping the rest. Remember, once again, that any gain is always divided among five members.

Two lengthy footnotes in the contract reveal that these terms were renegotiated so that after July 2008 DBSK members expected to receive 2% of the total sales of their Korean albums IF the sales range from 50,001 to 100,000 units, 3% if album sales reach 100,000-200,000 units and 5% if album sales exceed 500,000 units. They receive 10% of income made from any other format in which their music is sold (such as MP3 or digital downloads). As for proceeds from broadcast or media appearances in Korea, the group can receive as much as 65% of the profit IF THEY ARE CAST AS REGULARS IN A SHOW, but SM reserves the power to take as much as it deems necessary as “PR fees”. It is also important to note that all the group receives in net profit is divided into five.

The amendments made to the distribution of income from media broadcast appearances are not any less questionable in terms of added benefits to the DBSK members. Under these changes, also pursuant to July 28, 2008, SM takes 40% of proceeds from DBSK’s non-guest appearances and reserves the right to take as much as 50% in “management fees” from profits made from all other types of DBSK’s media activities. What remains is split among five, amounting to 12% of total gains for each member. SM always holds the right to deduct other miscellaneous amounts for the payment of external staff and DBSK’s living expenses at any time.

One could argue that the contractual arrangements detailed above for payment and income distribution represents “fair wages” and “equal remuneration for work of equal value”—and, no doubt, there are plenty who are doing just that—but this argument can’t be made using the standards and definitions of “fair” and “equal” of the 21st century. As it is, these arrangements don’t even pass the minimum threshold of international human rights law.

It is almost impossible to extrapolate a clear picture of DBSK’s working conditions from the contract alone. However, provisions such as Article 3, where the company unilaterally lifts all of DBSK’s copyright and artists’ rights, Article 4, which gives the company full control of when and where DBSK will appear, Article 6, which obligates DBSK to comply with every demand of the company’s managing staff with regards to musical and entertainment activities or take responsibility for non-compliance, and Article 11, which gives the company the ability to stop and start DBSK’s activities if it unilaterally deems the contract breached, hardly amounts to “favourable conditions of work” for DBSK or “safe and healthy working conditions.” The practical consequences of these provisions arguably amount to forced or compulsory labour. And to think that this was to be supported for 13 years…

Article 24 of the UDHR provides, “Everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay.” Article 7(d) of the ICESCR echoes the same right. Even the contracts of unpaid interns at the UN specify holiday and rest allowances. And yet, there is not a single provision in DBSK’s contract for holidays or rest periods.

B. Cultural rights

Article 27.2 of the UDHR states, “Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.” Likewise, Article 15.1(c) of the ICESCR provides that “The States Parties to the present Convention recognise the right of everyone…To benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.” This is further developed under the instruments of international intellectual property law. Thus, I will cover the moral and economic rights of artists relevant to DBSK’s contract in section III.

C. The question of “slavery”

Ever since DBSK’s contract was revealed to the public, Korean fans and the media have labeled it a “slave contract”. The Korea Fair Trade Commission and representatives of the court, on the other hand, have refrained from using the term, preferring the much softer “unfair contract” or “long-term exclusive contract.” This is understandable. Even in the vague, airy, minimum-threshold world of international law, use of the word “slavery” or acknowledging a situation as constituting slavery carries considerable legal weight and triggers political responsibilities.

Article 8 of the ICCPR says of slavery:

1. No one shall be held in slavery; slavery and the slave-trade in all their forms shall be prohibited.

2. No one shall be held in servitude.

3.

(a) No one shall be required to perform forced or compulsory labour;

(b) Paragraph 3 (a) shall not be held to preclude, in countries where imprisonment with hard labour may be imposed as a punishment for a crime, the performance of hard labour in pursuance of a sentence to such punishment by a competent court;

(c) For the purpose of this paragraph the term “forced or compulsory labour” shall not include:

(i) Any work or service, not referred to in subparagraph (b), normally required of a person who is under detention in consequence of a lawful order of a court, or of a person during conditional release from such detention;

(ii) Any service of a military character and, in countries where conscientious objection is recognized, any national service required by law of conscientious objectors;

(iii) Any service exacted in cases of emergency or calamity threatening the life or well-being of the community;

(iv) Any work or service which forms part of normal civil obligations.

Thus, the ICCPR takes a broad definition of slavery that includes “slavery…in all its forms” and considers “forced or compulsory labour” one of those forms.

The offense of slavery is so grave that Article 4 of the ICCPR forbids signatory countries to engage in it or allow it on its territory even in times of “public emergency which threatens the life of the nation and the existence of which is officially proclaimed.” This essentially makes the ban on slavery a jus cogen norm, a norm that countries cannot go against or allow individuals on their territory to go against UNDER ANY CIRCUMSTANCES WHATSOEVER.[iii] Even if a contract (verbal or written) was legally formulated, if it contains any provision that violates or urges/causes another party to violate a jus cogens norm, that document is immediately rendered null and void. Other norms in this category include the interdiction against genocide, torture and arbitrary execution. Countries who find an individual on their territory who has violated a jus cogens norm are obligated to put that person on trial or, if unable to do so, extradite him to the nearest country that can, whether or not either of the countries have signed an extradition treaty. The failure of one country to stop or effectively deal with the violation of a jus cogens norm is accounted as the failure of every country.[iv] Hence the dilly-dallying around the word “genocide” in 1994 when Rwanda happened.

Luckily for SM, only paragraphs 1 and 2 of Article 8 are considered on the level of jus cogens (Article 4.2 of the ICCPR). Even so, given the 13-year contract length along with the cumulative penalty for breach of contract—the more successful Dong Bang Shin Ki is, the more they would owe SM to break away according to the calculation method under Article 11 of the contract—which media experts place at roughly 400,000,000 USD[v], this contract flirts dangerously with the category of slavery.

II. International Labour Law

By far, the most influential body in the area of international labour law is the International Labour Organisation (ILO), a UN agency of which South Korea is a member State[vi]. What the Universal Declaration of Human Rights is to international human rights law, the Declaration on the Fundamental Principles and Rights at Work is to international labour law. The Declaration enshrines four fundamental rights: freedom of association and the effective recognition of the right to collective bargaining; the elimination of all forms of forced or compulsory labour; the effective abolition of child labour; and the elimination of discrimination in respect of employment and occupation (Article 2). Each of these rights has a couple of conventions (aka, treaties) attached to it. Membership into the ILO is taken as tacit endorsement of the Declaration (Article 1(a)), and even if a member country has not ratified a convention (aka, treaty) attached to each of the rights recognised in the Declaration it is required to submit reports to the ILO on its progress “to respect, to promote and to realize, in good faith and in accordance with the Constitution, the principles concerning the fundamental rights which are the subject of those Conventions” (Article 2).

The Republic of Korea has ratified the conventions attached to the effective abolition of child labour and the elimination of discrimination in respect of employment and occupation. It is periodically submitting reports on the progress made for the elimination of all forms of forced or compulsory labour.[vii] The conventions attached to the elimination of forced or compulsory labour are Convention 29 Forced Labour Convention (C29, 1930) and Convention 105 Abolition of Forced Labour Convention (C105, 1957).

C29 defines forced or compulsory labour as “all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily” (Article 2.1) and goes on further to state in Article 5.1, “No concession granted to private individuals, companies or association shall involve any form of forced or compulsory labour for the production or the collection of products which such private individuals, companies or associations utilise or in which they trade.” And yet, Article 3.2 of DBSK’s contract requires that “during the time the contract is in effect [DBSK] shall do with care and due diligence everything decided by the company and shall not carry out activities freely/independently, or else will be required to pay the penalty calculated under Article 11.1.2” (the penalty under Article 11 is the same penalty for breach of contract that is estimated at this point to be roughly 400 million USD and accumulates in amount the longer DBSK remains with SM and the more successful the group is). Furthermore, Article 6.3 of the contract requires DBSK to take on full responsibility (financial included) “if non-serious personal reasons prevent [DBSK] from making planned appearances in broadcasts or concerts.” Article 6.6 of the contract relates to DBSK’s recording obligations and adds in parenthesis, “the timing for album production will be decided by the company; [DBSK] is required to follow along.” Once again, this contract comes dangerously close to belonging to an undesirable category. Perhaps the only thing saving SM in this area is the fact that the definition of forced or compulsory labour includes, “[work or service]…for which the said person has not offered himself voluntarily.” But given that the majority of DBSK members were minors when they signed this contract, this is not a bulletproof defence either.

South Korea has also ratified the ILO Equal Remuneration Convention (C100, 1951). The issue of equal remuneration was covered in the section above on international human rights law, so I will not be going into it again here. Suffice to say, the ILO Equal Remuneration Convention serves to reinforce the same norms in those human rights instruments and requires signatory countries to incorporate them into national law.

III. International Intellectual Property Law

The cornerstone of intellectual property law anywhere is the rights of the author (droits d’auteur) or copyright, sometimes referred to as the “economic rights” of the artist. The cornerstone of copyright in most civil law jurisdictions, of which South Korea is one, is artists’ rights, sometimes referred to as the “moral rights (droits moraux)” of the artist. Moral rights are rights attributed to the creators of copyrighted works—in other words, artists, in the broadest sense of the word. They include, among other rights, the right to be credited for the original work and the right to the integrity of the work, which prevents the work from being altered, distorted or mutilated without the artist’s consent or outside of his knowledge. These rights hinge on the status and person of the artist, not his or her art. Therefore, even if the artist relinquishes her art or the copyright to her art to a third party, she maintains the moral rights to her work[viii]. Copyright, on the other hand, revolves around the expression of the artist—his or her work.[ix]

Both moral rights and copyright are recognised on the international level. The main organisation involved in the formation and promulgation of intellectual property law here is the UN World Intellectual Property Organisation (WIPO)[x]. The Republic of Korea has ratified several WIPO treaties relevant to this case: WIPO Copyright Treaty (1996), WIPO Performances and Phonograms Treaty (1996) and WIPO Rome Convention (1961). Each of these instruments recognise moral rights and/or copyright[xi].

However, perhaps the most important treaty on the international level when it comes to moral rights and copyright is the Berne Convention for the Protection of Literary and Artistic Works of 1886 (revised in 1928). Article 6bis of the Berne Convention states, “Independent of the author’s economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to said work, which would be prejudicial to the author’s honor or reputation.” South Korea ratified the Berne Convention August 21, 1996. The Berne Convention also obligates its signatories to provide the same recognition and protection of the copyright of works of artists from other signatory States as it does for its own nationals (Article 5). For example, Japanese copyright law applies to all works published and all performances performed in the territory of Japan, regardless of the nationality of the author or where the work was originally created or performed. Japan ratified the Berne Convention July 15, 1889. Notice how, in DBSK’s contract, DBSK’s returns on works produced in Japan/abroad as well as copyrightable media appearances shot in Japan are much higher than on their Korean counterparts (Article 9 and 10). DBSK members are entitled to 70% of the net profit made from self-made compositions produced in Japan as well as on the net profit made on CFs shot in Japan. Through the stipulations of the Berne Convention, DBSK were able to benefit from Japan’s copyright protections.

This just makes the provisions of copyright and moral rights “protection” of DBSK’s contract under SM all the more shocking. Article 3 of the contract is a veritable crash course on how to disregard artists’ moral and economic rights. DBSK’s company unilaterally takes ownership rights to all of DBSK’s album and sound recordings (Article 3.4) and just as unilaterally lifts the copyright of all the members’ self-compositions, even giving itself the authority to distribute, broadcast and change DBSK’s works into any format or form it chooses without DBSK’s consent (Articles 3.5, 3.6). In fact, the contract requires the DBSK members to ask SM permission to give away any of their own compositions or works to a third party (Article 3.9). To SM’s credit, it gives DBSK the bare minimum right to object if it doesn’t want SM to sell or transfer their songs to a third party (Article 3.10).

The practical effect of Article 3 of DBSK’s contract is to make it impossible for any of the DBSK members to claim their moral rights or copyright to their work. This not only represents an infringement of Article 6bis of the Berne Convention, but also arguably infringes upon the entire 2nd chapter of the WIPO Performances and Phonograms Treaty (Articles 5 – 10), which covers the moral and economic rights of performers—note, of performers, not their proxies—including the right of reproduction of works, right of distribution, right of rental and right of making available recorded performances. The right of distribution and of rental is also recognised in Articles 6 and 7 of the WIPO Copyright Treaty as the domain of authors of literary and artistic works. Article 15.1 of the WIPO Performances and Phonograms Treaty further states, “Performers and producers of phonograms shall enjoy the right to a single equitable remuneration for the direct or indirect use of phonograms published for commercial purposes for broadcasting or for any other communication to the public.” In Japan, DBSK enjoyed up to 70% of this kind of remuneration. In Korea, SM took up to 90% of the same (Articles 9 and 10 of the DBSK contract).

The doctrine of moral rights ensures that the artist will always have a say in the economic destiny of his work. One could say that the entire point of moral rights is to safeguard the right of the artist to give or withhold consent. And yet, what is striking about DBSK’s contract is how little it recognises this right, if at all. If the arrangements under Article 3 weren’t enough, Article 4 rubs insult into injury by deciding, “even after expiry of the present contract, the intellectual property rights and ownership of all songs produced during the time this contract was in force shall belong solely to the company” with no mention of consulting the DBSK members in cases where the songs are the members’ own compositions. The lack of reference to consent from the DBSK members contravenes, among other international obligations, Article 7.1 of the WIPO Rome Convention, which protects the right of performing artists to give or withhold consent on the broadcasting, reproduction and/or fixation (ie, video recording) of their performances:

Article 7

1. The protection provided for performers by this Convention shall include the

possibility of preventing:

(a) the broadcasting and the communication to the public, without their consent, of

their performance, except where the performance used in the broadcasting or

the public communication is itself already a broadcast performance or is made

from a fixation;

(b) the fixation, without their consent, of their unfixed performance;

(c) the reproduction, without their consent, of a fixation of their performance:

(i) if the original fixation itself was made without their consent;

(ii) if the reproduction is made for purposes different from those for which the

performers gave their consent;

(iii) if the original fixation was made in accordance with the provisions of Article 15, and the reproduction is made for purposes different from those referred to in those provisions. (emphasis added)

It is a sad irony that an international treaty, drafted by delegates indifferent to Koreans per se, takes the consent of creative individuals more seriously than a document drafted on Korean territory by Korean citizens representing a leader of the creative industry in Korea.

Closing Remarks

At this point in time, in my opinion, there is really only one respectable decision to this lawsuit from the standpoint of the international community. However, regardless of the final ruling, the fact that a document like DBSK’s contract under SM materialised from within South Korean territory, in spite of the international treaties, obligations and norms the Republic of Korea has committed itself to, is nothing short of a national embarrassment. As such, the Korean government stands to lose face and credibility on the international stage for failing to meet key treaty obligations. And all because of the ethically questionable business practices of a single corporation…

More than anything, what the lawsuit and its consequences, this entire affair with DBSK, SM and JYJ, have shown is that the status quo in the Korean pop music industry is not sustainable. Even if the Korean government cares nothing for international obligations or the principles of international human rights, labour or intellectual property law, if it is serious about developing South Korea’s cultural content as a viable export and vehicle for the country’s soft power it will commit itself now to overhauling the Kpop system so that entities operating within South Korean territory never issue such contracts again. This means, even in the face of strong lobbies from SM and their like, involving every relevant branch and department—from the Ministry of Culture to the various departments dealing with labour and media relations—and not simply leaving it all to the Fair Trade Commission. Otherwise, we might as well consign the Korean Wave to the history books as a big joke we would all rather forget.


Conventions/Treaties/Instruments:

1. Vienna Convention on the Law of Treaties (1969)

2. Universal Declaration of Human Rights (1948)

3. International Covenant on Civil and Political (1966)

4. International Covenant on Economic, Social and Cultural Rights (1966)

5. ILO Declaration on the Fundamental Principles and Rights at Work (1998)

6. ILO C100 Equal Remuneration Convention (1951)

7. ILO C29 Forced Labour Convention (1930)

8. ILO C105 Abolition of Forced Labour Convention (1957)

9. Berne Convention for the Protection of Literary and Artistic Works (1886)

10. WIPO Rome Convention (1961)

11. WIPO Performances and Phonograms Treaty (1996)

12. WIPO Copyright Treaty (1996)

References:

[i] Fact Sheet No.2 (Rev. 1), The International Bill of Human Rights, Office of the High Commissioner of Human Rights, Geneva, June 1996

[xi] http://www.wipo.int/wipolex/en/profile.jsp?code=KR

~Please do not remove without proper credits~

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99 thoughts on “DBSK’s Contract under SM from the Perspective of International Human Rights, Labour and Intellectual Property Law

  1. ….OMG…so complex understanding O.O i need time to reread it again and again 😄 but nonetheless thank u unnie for writing this =) how’s things going on in korea? from what i heard hell gate is open again and things are getting more fiery at the moment

    • The ahjummas have paid for advertisements on local buses cheering on JYJ…”We cheer on your youth.” And Korean fans are opening an internet TV station for the group….but you probably already knew that. News travels fast in the international fandom ^^.

      Other than that, the newspapers are continuing their pressure on the K-ent cartel to stop being such jerkwads and let JYJ perform on TV. I read a touching article in the Chosun Ilbo about Yoochun and how he’s getting flooded with drama and movie requests that made my day ^^.

      That’s about it from the Korean side…

      • that’s what i love about JYJ fandom =) always being positive and fight for our boys~~thank u ahjumma fans and JYJ FANS! continue to buy their MUSIC ESSAY PLEASE~ kcassies ain’t waiting for hm no more, they’re going to fight for jyj no matter what! they’re thinking of ways to get Bigeast to support JYJ again =) hwaiting!

      • Thank you Jmmie and Admins! you make my day happy ! you artical make really top for me because my poor english! but really excellent, thank you again!!

      • @chocogurl Hi^^ I know this is JYJ file here, but it would be nice that we don’t separate JYJ or HoMin fans^^ TVXQ5 fans ROCKS~! That evil company wants us to choose sides, I just don’t want to =P (I’m sorry if this offended, I ♥ you all^^)

      • @Makikocan well u didn’t offend me but seriously this is the works about JYJ fans and their ahjumma fans….not trying to upset u or what but homin fans in korea ain’t supporting jyj like what u think international fans saying they support 5, AKTF thingy….homin fans in korea are doing a really good job trying to make jyj reputation strained in korea…if u don’t believe me is ok =) but i hope u know that the situation in korea is really different dbsk5 fans had enough of homin fans spreading rumors of JYJ to japanese fans and international fans in 6 different types of language….k fans aren’t gonna sit down and watching this happening, they’re gonna protect JYJ even more since they now know that what’s really going on in reality….in honesty even international fans those who support HOMIN bash JYJ like there’s no tomorrow, want example please go to hm youtube vids, allkpop and yunho soompi thread…..and there’s fans who are hm biased but pretend to support all 5 but chose to bashed JYJ ==;;; i know there are some jyj fans who bash homin but overall jyj fans don’t care anymore…we’re just going to spread the jyj love even more =) and the fact JYJ k fans are doing car stickers with supporting messages to JYJ rocks! jyj fans are so lovely~

      • and it’s good that u support all 5 but i hope u can understand that as many people like to assume that being a jyj fans mean being an anti of homin == i think we jyj fans don’t hate homin but at the moment we are indifferent to them, we rather focus our attention and our love to JYJ….and i hope i didn’t offend u =) this is my pov only

      • @chocogurl No, not at all, you didn’t offend me^^ I know the chaos is getting bigger, but I didn’t know that die-heart HM fans are spreading words to Japan & International fans…>_< That's not nice of them! I hope they could understand what "support" really means. It doesn't include bringing others' reputation down. I read something before saying that big K-sites didn't take sides, but due to die-heart HM fans who started bad-mouthing, they stood up for themselves. I'm glad that big K-sites don't take sides, they support all 5 as TVXQ is made of all 5^^ (I hope this's still the case today *cross fingers*)

        Sigh…that's what I can say. I know where the fanwar is coming from (just read Vivien's article), and I know the reality is that fans are fighting each other…However, I'm glad that die-heart JYJ fans didn't bad-mouth (or they did, I don't know), they just go against of what die-heart HM fans are doing. And it's so nice of them for the bus campaign & the broadcasting channel ♥

        Yea, I figured that fans who are leaning more on JYJ side (sorry, I'm not using the terms "JYJ fans" nor "HM fans") don't care anymore, though some of them still put their time on the fanwar bashing HM, but generally, we focus on how to promote JYJ and show more love to them. That's a funny phenomenon 😄 I believe it is because we know that bashing HM can't do anything, but to worsen the situation. The most important thing for us to do now is to help them get the broadcasting rights in Korea. Don't forget the "invisible hands" is the main/real problem here!

        Support JYJ means anit-HM? That's retarded @.@ (sometimes I really don't get why fans who lean on HM side are that unreasonable) I support all 5♥ No matter who stayed or who left (bought Music Essay & KYHD^^). I think the only thing that I'm against with is the evil company.

        Thank you chocogurl for telling me the current situation. Although I think this's so retarded, but things are happening like that @ the moment…this's the reality…sigh…

      • @Makikocan is ok ^^ u can follow jyjlove1111 and DCTVXQ_gall in twitter, there korean k fans who set up these two twitter accounts to fight off rumors made by HM fans to save JYJ reputation =) they only use facts to protect JYJ against HM fans….things are going to be more serious from now…JYJ fans in korea is active since all the bashing and spreading rumors in korea about JYJ…they had enough, though they’re not bashing homin but support jyj more = buy more jyj albums, bus Ad and car stickers with supportive messages to jyj ^^ i hope hm fans whether it’s inter or k just respect us jyj fans and jyj and just show your love to homin not hate to jyj ==

    • (:
      I think it’s the same to Yunho’s and Changmin’s fans. They are bashed by Jaejoong’s, Yoochun’s and Junsu’s fans (: Don’t you think so?

      Both sides try to prove their idols are right when in fact, they are just destroying them (^O^)V

      Whatever treatments that JYJ’s fans receive, Yunho’s and Changmin’s fan also get that :3

  2. woaa… 70% for DBSK in Japan…. it makes me want to see them in Japan again.

    but those 70% is already just for DBSK? I mean.. 30% for Avex SM japan &SM korea?

    its scary to read this.. I knew some.. but this is interesting 🙂

    I’m feeling headache tho.. so heavy..

    • Actually, it goes like this:
      Avex: 50% profit
      SM Japan: 25%
      SM Korea: 25%
      DBSK: a portion of what SM Japan gets (i.e. a portion of 1/4 of the total profit). The contract says that DBSK can get 70% for albums & songs in Japan. HOWEVER, the income calculation process is NOT transparent, thus DBSK members don’t know whether their income was calculated accurately or not.

      An additional information is that, each member of DBSK only received 150 Million Won (around US $134K) from 2005 until 2009 for Japanese activities, that means the annual Japanese income of each member is not even US $30K per year!

      Plus, “SM Entertainment owns more than 90% of SM Japan’s quota and is the parent company of SM Japan” and “It can be said that SM Japan and SM Entertainment are basically one company therefore SM Entertainment is using this (i.e. divide SM Japan 25%, SM Korea 25%) to acquire twice the amount of money they should be getting from TVXQ’s Japanese income.” (source: http://www.soompi.com/forums/topic/311173-dbsk-members-reveal-their-japanese-income/ )

  3. Lengthy! Yes. That’s a sign of some deep thought and investigating.
    Let me cut off my music, get something to eat, get comfy, and READ. I’m so motivated.
    I think this is what I’ve been waiting for.
    I’ll be back with commentary.

  4. When i see articles like this sometimes i wish i could go post it in a place that openly bashes jyj but i dare not venture lest i be flamed to oblivion

  5. This made my brain bleed but it is quite an intellectual reading. I am not much into laws (I am more interested in Korean culture and history) but your ending paragraph summarized my thoughts. The government was so keen on promoting the Korean wave and Kpop abroad that they were not able to monitor properly, in terms of international laws and standards, the contracts of the artists that they promote. People abroad only see the glitz and the glamour portrayed by Kpop but not the ugly truth that these artists are experiencing. Korea may boast of its turbo capitalism, democracy and its fast ascend to belong to the OECD countries but in terms of human rights, it is still far behind and shows remnants of Korea’s authoritarian history.

  6. Okay, I need time to digest this! I have some questions: is the final hearing regarding the lawsuit heard next week? Just my curiosity, since you are studying law, I would like to know what you think the result will be? and why?

    Currently, the “drama” is getting out of control (a bit), do you think this will affect the result? The former company (try not to say the name) & their artists claimed JYJ are the betrayers; full of ingratitude, etc. Would this affect the result? Would the theory and idea of Confucianism play a part of the argument? (this may be broad)

    Sorry for asking so many questions. I’m a Communication student and for my research paper, which I’ll doing for my Master, I’ll be writing about this issue.

    I know my questions are sensitive, if you don’t mind, please email me regarding my questions.

    Again, thank you very much^^ and I ♥ your articles~!

    • Hi Makikokan,

      The “drama” that you refer to has no bearing on the case. That was a reaction to Junsu’s tweets and so it would be silly for the Korean court to take that into account for a lawsuit dealing with DBSK’s contract. ^^

      I dunno what motivated those SM idols…it could have to do with Confucianism and the paternalistic structure of SM…but at the end of the day, everything boils down to incentive, incentive, incentive. Those idols are either invested in SM or still need SM’s support to ‘make it’. I have no idea whether or not SM pushed them to say what they did, but given the balance of incentives, I’m not in the least bit surprised whose side they took.

      I hope the final hearing will be the 18th. I don’t work in the Korean court system so I don’t know, but seeing how JYJ are sticking around and keep delaying their trip to America, I have a feeling the 18th will be significant.

      • I don’t think it has anything to do with personal incentive for all the artists at least. A poster on Soompi raised a valid point that SME has a cult mentality. Lee Soo Man has charisma (a cult leader always has this charisma and leadership) and that is maybe why all the artists love him so much even though they are maintaining unhealthy work loads. Plus, similar to a cult, individuals who first join a cult are isolated from the rest of the world and manipulated into believing the cult is always right. In many of the companies nowadays in Korea’s music industry the rookie groups have no access to internet at the beginning and also cell phones. Because of their workload they barely have any time to meet their family either. These things increase the level the artist is brainwashed into believing the company is ‘the good’.
        This does not mean that every artist that is in the company has found this out (the fact that they are in a cult and not a business relationship). The few documentaries I have watched on cult behavior increases my belief that SME is a cult business with a ‘family mentality’. All those who leave the family cult therefore are doing a grave injustice and showing ingratitude to the cult leader. Therefore, they gang up to destroy the person who has ‘hurt them’. In this case it wouldn’t even matter what Yunho’s perspective was, the cult followers will see that their leader Lee Soo Man is having a hard time and feel that he has been done a great injustice.
        Another valid point that I see is that in every cult that I have studied the leader of the cult benefits tremendously both financially and psychologically while the followers are not even aware or do not care that they are loosing money and health unless their family members tell them or other outsiders do. Even at this point they make excuses for themselves, or lie that their condition is better than it actually is.
        The sad fact is that many in the music industry may have already realized this but are now too afraid of the huge penalty if they leave the cult system. Also, they are afraid that without the cult they will not be successful any more. Luckily JYJ are now breaking these kinds of thoughts. Because of them the cancellation fee of contracts has greatly been reduced and because of them other artists have become aware of the fact (if they are paying attention to the JYJ case study and not being completely manipulated by their cult even today) that without the company you can still be successful.

  7. After reading this piece or research, I have faith in The Republic of Korea that JYJ will win the case for sure. The hearing on the 18/Jan will tell us that they need to go to court or not right? But I hope the judge will give a final decision for JYJ so they dont have to drag this on forever as the boys need to get on with their lives because the military drafting is looming close

    • The problem is, even if they do win, SM will surely appeal the decision.

      I don’t know how it is in Korea, but appeals here in the US can take a minimum of two years, and usually much longer, depending on the type of case, adjournments requested, the court’s request for further information, the specific points being appealed, and the caseload of the court itself.

      I should note that one cannot appeal a decision simply because they do not like the ruling. In the appeal, there must be specific points of law (how the judge applied their interpretations of actual laws or caselaw precedents from other cases with similar content to this case) and/or questions of procedure (did the judge follow proper procedure during the case) that are being, well, questioned. (I’m trying not to say this in “legalese” and keep it simple. 🙂 )

      There is another consideration, and that is when the appeal is actually filed. Any appealing party has a right to request what is called a “stay” with regard to the lower court’s decision/ruling. Which basically means they can ask that until the appellate court hears the case, the lower court ruling be ‘stayed’ or not go into full effect. Considering the specifics of this case and the circumstances taken into account with regard to the initial injunction granted in JYJ’s favor, well, two things.

      If SM were to win, and JYJ appeal, the appellate court could feasibly grant a stay if they determine – like the injunction – that it is detrimental to JYJ’s livelihood.

      If JYJ were to win, again, the court would take into consideration this same factor when deciding whether or not to issue a stay for SM.

      Justice is not swift, alas, and if you know anything about American Law and the Supreme Court, it can take a decade for a case to be heard, not to mention that the Supreme Court can choose not to hear/rule on a case. Again, I do not know the structure of Korean courts, but I can’t see their appeals process being any less complicated.

      So while it will be nice to have a decision that hopefully *crosses fingers* rules in JYJ’s favor, this case is, sadly, not even close to being over.

      • I agree that this could go on for years. But they won the biggest victory in ’09 — the suspension. As long as that remains in place, there wouldn’t really be any change in their professional situation, no matter the outcome. (I don’t think they plan to join another entertainment company.)

        However, a victory would make a difference to their mental and emotional state, justification for all the issues they endured in the past 18months. And it would be a message to the rest of the industry and society as a whole.

  8. WOW. Just WOW. You just made me understand a lot better.
    So much info to absorb!
    *goes and re reads the articles again*

  9. If the court favoured SM instead of JYJ, honestly Jimmie, your country definitely going backward in terms of human rights and there’s must be something wrong with your government body. If JYJ won, I don’t think SM just let it go….

  10. Jimmie, thank you sooo much =)
    I especially love how you prefaced the article with your credentials (and limitations) in regards to law, because I truly believe only people with a certain level of understanding in law can tackle an issue like this and form an opinion worthy of consideration. For anyone with no legal knowledge to dissect the contract, I would first of all not be able to even put much stock in the accuracy of his/her understanding of the contract, so I don’t know what is the point of reading an analysis based on shaky understanding of the very thing the author is analyzing?
    Not saying I am taking every word of yours as the golden truth, but it’s nice to be *relatively* assured that the author knows what she’s talking about =P Sorry, this rant is really directed at fellow fandom dwellers who have forgotten that there are issues that need a certain level of specialized knowledge to tackle.

    Regarding the contract itself, other than the humongous amount of penalty to end the contract early (or otherwisely ‘breach’ the contract), what struck me the most is actually not the profit distribution (which fans are rightfully concerned with since that decides where *their* money goes =P), but the artists’ lack of control over their own artistic creations, and how their career as an artist will pan out! IMO, this is NOT a contract for an artist, but a contract for an employee working as a singer/performer. I guess you can get lucky if you *happen to* agree with the company’s policies in regards to how your self-composed works are used and how your career as an… hmmm entertainer? is to be developed over time. Or if regardless of the contract clauses, the artist and the management company enjoy a mutually trusting relationship allowing them to work more like partners, where the artist’s inputs are valued… But bottomline is, one cannot count on being treated better/allowed more rights and freedom than what the contract depicts.

    Thanks again for writing this piece, Jimmie =)

    • what struck me the most is actually not the profit distribution …but the artists’ lack of control over their own artistic creations, and how their career as an artist will pan out!

      As someone who considered a career in an artistic field (and has ended up approaching another from a different angle), the way the intellectual property rights are dealt with is horrifying. The only way they could keep their compositions to themselves was to write them down in the dead of night and hide them under the bed (which SME owns.) From listening to Jaejoong and Yoochun, that’s exactly what they did for years.

      I hope they do retain some kind of rights to the songs they put out under Avex. They did some lovely work there.

  11. Thank you so much. This was interesting and encouraging to read. But what bothers me is the court final statement. If SME would win, does this mean SK violated international agreements? and if JYJ wins, the whole of kpop and Korean government lose face to the international world? .. am I on the right track here? lol

  12. WOW!!!!! speechless.

    Can you please have a deep polite conversation with the founder
    of truetvxq about y’all views on this contract? I just want to know why the same contract is viewed differently.

    Maybe because you’re relating it to human rights laws and she’s relating it to ‘the status quo’. According to the status quo, it’s normal for a artist to not get much from album sells because of ‘operational costs’ and to forgo all of their rights to their own creations to the company because they voluntarily gave it up before hand (signing the contract which stated they had to so they basically agree that that their stuff belongs to the company). BUT in human rights, your labor into something makes it your own, point blank period and you automatically is granted rights to at least have a say in what happens to it (I should review John Locke’s philosophy on property and possessions again. He goes into detail on what it means to own, to give away something voluntarily etc. I forget how his words it but hearing it in philosophy class made me smile).

    I don’t understand it. Why must they put big production costs in to making this person an ‘idol’ or trying to chase the next ‘hit’ but not reap huge profit and the artist, the face if this whole thing wounds up being the last on the payroll and ends up up getting little to nothing for their work? and then they have to continue to ‘front’ like they’re rich for fans and others with advancement money, rented cars houses and clothes. Why aren’t artists on fixed wages where their labor’s worth is guaranteed. Their labor’s wage is in the budget, is in the ‘operational’ costs. Why is their labor and pay outside of that? Why is the music industry like a freaking casino where you put in all you have and one moment you get lucky, strike it big then the next you get nothing? Can it be less sporadic?

    And about voluntarily signing a contract that dances with the ‘slave like’ duties and wages. Their parents signed it we all know and since they where minors (and OBVIOUSLY had no clue what the contract really meant to them down the road and they obviously where impressionable…example Junsu’s silver ponytail in triangle lol) what does that mean for JYJ in having this contract voided? How can SM use that exactly to counter? How can they not?

    Can you explain why SM counter’s the contract with this cosmetic’s business story? How will that cosmetic thing help counter an unfair contract? I don’t get it.

    Thank you so much for coming at the contract from the human rights angle.
    This can rock the whole Korean business structure if they win.

    I hope they do.

    • Hi Shh,

      To be honest I don’t where this ‘excuse’ about high operational costs in making CDs comes from. I think people are getting it (intentionally) confused with the decline of the CD market and overall CD sales in general. While there is the sunk cost of paying for songs to be recorded and maybe additional sunk cost in paying for hi-tech recording equipment, the manufacture of the CD itself is rather digitised, mechanised and cost effective…it’s just a matter of stamping the original blueprint on to x number of copies. In any case, the price of a CD is not representative of exclusively these costs, as far as I know. The biggest chunk of a CD’s price reflects what economists call “social rent”…the value created by the artist that fans are willing to pay to enjoy this value. Due to the relationship of this value to the author of a work, the law of most countries attributes this to the artist’s copyright and guarantees that it is sufficiently remunerated to the artist (the rate of remuneration varies by country but there’s no doubt that 2% will be seen as a violating low in most, if not all, of them).

      Even if one argues that the DBSK members relinquished voluntarily their copyright automatically by signing this contract, they do not (and in many jurisdictions, cannot) relinquish their moral rights. The biggest problem with this contract is that it acts as if intellectual property doesn’t exist and suppresses both without distinction.

      I have no idea why SM is countering with this cosmetics business. From the standpoint of the law I deal with (international law), it makes no sense and is completely irrelevant…but perhaps there is a loophole law in Korean law that SM is attempting to manipulate.

      • Hi Jimmie, is it true homin fans are having a meeting in japan to spread rumours about jyj? about the cosmetic business, 6.25 meeting, etc. 😦

      • Thank you. I got the ‘operational costs’ excuse from truetvxq.

        Thank you thank you thank you. This is what I was thinking when it comes to property rights but I just didn’t know how to scholarly word it.

        Yes the cosmetics story is so…smh like it doesn’t even measure us as a sufficient possible reason. To me, owning a share in a independent business and wanting to use the TVXQ name to make it big is NOT ENOUGH meat to make me full when it comes to their reasons for leaving SM. It’s just not. Anyway you turn it, word it etc. IT’S NOT ENOUGH. That’s why I don’t understand the counter attack from HoMin fans and SM that they left cause of this ‘greed’. WHAT? if you didn’t get your money’s worth in working under a company for 7 years…of course you will start to search for different income outlets like endorsements, stocks etc. That’s totally okay and is definitely not greedy especially when the need for it comes from being ripped off in wages by a greedier company in the first place.

        One of my favorite artist Lupe Fiasco had to fight his record label because they where trying to make him sign a deal that would allow them to take wages from his tours and other endorsements he does as if they ‘own’ his labor and everything he does (360 deal). That deal will allow artist to not make a separate independent income unless the label see some profit from their independent work. NOT FAIR. During the time he fraught with them they shelfed his album for 2 freaking YEARS and didn’t promote him. It took the fans outcry for them to stop the halt of his promotions. How is Lupe or any other artist greedy for wanting more of an income for themselves when they’re not receiving adequate income in the first place?

        Anyway I’m ranting…thanks for answering me.

    • I just want to know why the same contract is viewed differently.

      This is the nature of life, isn’t it? Pick any topic – global warming, animal rights, anything political or religious, which [insert object like cell phone, computer, car, movie, song, etc. or person, actor, entertainer, etc.] is the best. There are always (at least) two sides. This is also the nature of law. Even if you suspect your client is guilty, as a lawyer you have a choice to either withdraw yourself from the case as counsel, or argue their side using any means necessary, including technicalities and loopholes or whatever legal means at your disposal. (Was O.J. Simpson guilty or innocent? Is global warming/climate change real? Creationism vs. intelligent design vs. evolution – which is the “truth”?) It’s the nature of debate.

      The music industry is like a “casino” as you put it because it’s a gamble. You’re gambling on the subjective tastes of your audience, aren’t you? You can’t guarantee a hit song or album. Even Michael Jackson – Thriller was the best selling album of all time. Bad did very well, too. But his later releases didn’t even come close to those two. This goes for any product.

      TVXQ’s fan club is/was the largest in the world. 800,000 members in Korea alone, 200,000 in Japan and god only knows internationally. How many albums did they sell? Having a steady fanbase or even a consumer base doesn’t mean anything unless those fans/consumers are willing to purchase the product you’re trying to sell.

      Even if a product costs pennies to produce, you still have exorbitant marketing costs. Television commercials, radio commercials, magazines, billboards, bus ads, posters – not only do they cost money in and of themselves, but the people involved also have to be paid. For idols and entertainers, that includes managers, stylists – hair and clothing, designers, crews to set up stages and equipment, producers, sound mixers, songwriters (composers and lyricists and arrangers) musicians, dancers, caterers (though considering fan donations, this might not be as big an issue in Korea) clean-up crews, and the list goes on. All the things behind the scenes we don’t usually see.

      The cosmetics company issue, from what I can see, is a diversion and an excuse. It’s also, whether we like it or not, a valid issue for them to bring up in light of the contract.

      How many people read the contracts, much less the fine print, that they agree to every day? Every time you upgrade your software, or join a particular website, a window pops up with “Terms of Service”, a box for you to click that you read them, and a button for you click I agree. When is the last time the majority of people even looked at those terms before clicking? People rely on an assumption of fairness and that the companies terms comply with the laws. Even in DBSK’s contract, there were clauses that talked about certain aspects being decided by “agreement between the individual and the company” and we all see how well that went.

      People sign questionable contracts every day because they’re not thinking about the consequences. The need a loan, a mortgage, that house or car or credit card. They’re not thinking “what if I lose my job in two years?” and when they see 0% down, they don’t look at the part that says in a year, the bank or loan company has the right to raise the interest to up to 29% at its discretion, especially if you have a couple of late payments, or whatever. Look at the current mortgage foreclosure crisis in the US and the number of people who have lost their homes in the last few years. *sigh*

      There are always going to be people, corporations, who will try to take advantage of others for profit. That’s the nature of business. Its all about profit. All businesses need to make some kind of profit to sustain themselves, even non-profits, or else they’ll fail. It’s not that profit is bad in and of itself, it’s the nature of achieving that profit.

      (btw, thanks Jimmie (again!) for this piece! Very thinky and informative!)

  13. Jimmie,
    It was really hard to read but it is really NECESSARY to read! More people should read this, really…
    JYJ is trying to prove that their contract is not valid from the start, right? According to what I read from above, I want to ask : why are the courts wating to make the decision then??? It is obvious that JYJ is right… Hankyung won the case. I know SM vs JYJ is a little different but the contract validity part is almost the same so… It will be ridiculous if JYJ lose… Even Chinese media criticized SM’s contract. SM is somehow ruining Korea’s image…so…I am getting ready fireworks for 18 January…!!
    Really, I will celebrate it ! I need this, I really need to hear good news on 18 January! I will celebrate it with friends on Tuesday night and I will post the pics on my twitter 😄 Cheers!! ♥ I hope 18th January can become JYJ’s independence day 😄

    • @nericia we’ll wait until that final moment comes^^ Not that I don’t support JYJ (I really DISLIKE that company), but we’ll keep it down ♥

      To be honest, during this waiting time, I don’t want to see the “drama” gets ridiculously bigger! I don’t know what intention that evil company has in it’s mind, but the so called “revealing” press conference, and artists attack ticked me! Dirty tricks mean something here! Especially closer to the Trial date. I don’t know what they have in mind to attack JYJ. Lawyers do use tricks (my experience. I work in a law firm & some Plaintiff’s/defence counsel are pretty tricky!) Don’t want to give them a chance to BS!

      *Crossing fingers*

      • @Makikocan
        I’m waiting patiently, don’t worry. I am just keeping fireworks ready, that’s it…^^
        you know, I am tired from all of this. I know SM never leave them alone but at least JYJ can be free from the contract then I won’t care about SM’s tricks… we know JYJ have supporters, they will survive I know but they need to be free from the contract first.
        It is hard to read and see everyday HM’s appearances and people’s tweets about them because I want my JYJ to have the same rights. I am just waiting, saying nothing…but once they win, nobody can stop me from talking ^^
        It is funny that HM called JYJ back to SM, there is NO WAY!

  14. Wow, lengthy @___@
    But it’s a really good read :).
    Thank you, Jimmie, for a very educational article ^^

    However, I think some details in your article is not accurate, specifically, about some parts of DBSK’s contract:

    “In the very first version of the contract, DBSK members expected to receive a mere 2% of the total sales of their Korean albums IF the sales range from 50,001 to 100,000 units, 3% if album sales reach 100,000-200,000 units and 5% if album sales exceed 500,000 units.”
    ^ Actually, in the 1st version of the contract contract, DBSK would get nothing if selling under 500K for an album and if they can sell 500K (which they couldn’t until “Mirotic”), they would get 50 Million Won. Only until July 2008, the contract was amended & the income division clauses were adjusted to what you have stated. In short, DBSK didn’t get ANYTHING from album sales, until “Mirotic”.

    “As for proceeds from broadcast or media appearances in Korea, the group can receive as much as 65% of the profit, but SM reserves the power to take as much as it deems necessary as “PR fees”.
    ^ DBSK didn’t get ANYTHING from broadcast or media appearance actually. Because only when they’re casted as regular member of a show, then they can get 65% profit. However, DBSK were never regular cast of ANY show, thus SM took ALL the payment from broadcast appearance & called it “PR fee”.

    “Two lengthy footnotes in the contract reveal that these terms were renegotiated so that after July 2008 DBSK members had to sell at least 500,000 albums in order to receive 50,000,000 won (a little less than 50,000 USD) ON THE ALBUM AFTER; they had to sell at least 1,000,000 units in order to receive 100,000,000 won (a little less than 100,000 USD), once again, ON THE ALBUM AFTER the one that sold 1,000,000 units. “
    AND
    “Under these changes, also pursuant to July 28, 2008, SM takes 40% of proceeds from DBSK’s non-guest appearances and reserves the right to take as much as 50% in “management fees” from profits made from all other types of DBSK’s media activities.”
    ^ The footnotes you mentioned (footnote number 3 & 4) actually states the ORIGINAL clauses 9 & 10, NOT the adjusted version. Clauses 9 & 10 were adjusted in July 2008 and are displayed in the table in the contract, not the footnotes.

    • PR fees…WTF (excuse my language)

      I’m very curious, how much did 1 person earn in the 6 years?

      PS: Info from Twitter (onetvxqforum and TVXQHOME), the 18th or 19th is just final pleading submission date, no judgment yet >_<

      • “Info from Twitter (onetvxqforum and TVXQHOME), the 18th or 19th is just final pleading submission date, no judgment yet”
        yes I have also read that….ahhh now we have to wait more?? I don’t want to wait more because SM will never sit and wait. Tweet battles, interview battles ahh I can’t take it anymore… 😦

      • 5 members of DBSK earned 11 Billion Won in total for 5.5 years of activities (from 2004 to mid 2009).
        So each member earned 2.2 Billion Won in 5.5 years, or average of 400 Million Won (around US $357K) per year (before tax). After tax, each member would only be left with around 270 Million Won (around US $240K) per year.
        The amount is small, considering they’re Asia’s top boy group :|.

  15. I need coffee and bread, then I’m going to grabe some and then I’ll come back and read your article Jimmie. This is very interesting.
    When I finish reading it, I’ll reply my thought then.
    Love you!

  16. Jimmie, Thank you so much for this

    I’m concerned though because I have been hearing that there are bad rumors about JYJ in Japan and in other counties. What is happening?

    • sometimes I hear these kind of things but I don’t know if it is right or wrong.I don’t think we should worry..because first of all there is no way Japan turn his back to JYJ because JJ and Yoochun are fave members in Japan and I also saw videos from JJ Japan fans, they want them back 🙂
      These rumors never effects the fans. Because once you love them, nothing can affect you ^^rumors alwas be here so we should only focus spreading JYJ love 😉

      • i think that, specially after Avex having Super Junior and f(x) + finally HoMin back was the prove that Avex’s lie was a very offensive one >.<
        the betrayl was hard and still is!
        cuz more recently Avex is selling Tohoshinki and JYJ stuffs! with means: using them for money.
        now i think that avex have even more haters than before….

      • Avex is there to make money, that isn’t the problem, JYJ will get their piece. The problem was using a lie to explain why they couldn’t negotiate a contract with JYJ. They’ve been caught, no one should believe stuff like that again. But if they will agree to a contract that JYJ likes, I wouldn’t mind them going back to Avex. They seemed to enjoy working with the people there. (Don’t think Jj would be going for drinks with Matsuura anymore, tho’)

    • according my japanese friend. She is BE member. She said, yes many JYJ anti in Japan. But the number of the one who love them is greater than the anti.

      Many bad rumors about JYJ, especially 625 meeting. And many Japanese fans displeasure of JYJ lawsuit. Many Japanese fans not confidence with their english, i think many articles should translated into japanese and being spread to BE >_<

  17. Nosebleed. T,,T After reading this article, I think my brain stopped functioning for a while. LOL. But this was an interesting issue to read. Thanks, Jimmie!

  18. Before JYJ, I’d never have thought that there’s more to fandom than squealing and fangirling over oppas’ sweet smiles and hot bods. And now here we are, talking about human rights, international treaties and intellectual property. I’m proud of us all.

    Thank you Jimmy and Cecilia and other authors of JYJ Files for providing us with thought provoking articles. I may not always agree with everything, but they’re always very well researched and beautifully presented. Definitely worth the read =)

  19. Jimmie,

    Thank you very much for this article. I’m speechles. How could some people want JYJ back to SME?
    BTW, if SME wins what will happen to JYJ? Should they return to SME or JYJ can fight again to the higher court? Or should JYJ pay some money to SME so they can be free from SME?

    • i think that JYJ would just be in SME again if SME change a lot of “mistakes” in the contract.

      but even so, TVXQ5 could keep like that if just SME allowed JYJ being in another company. Remember the company of SS501? DNP Media right? well.. the company was willing to have the 5 together even in others companies.

  20. Thank you so much for this. It must have taken a lot of time and effort to research and write this analysis. I actually understood the legal principles you applied and found myself nodding in some to some of the paragraphs.

    I have a question, though, and I hope no one finds it rude. From what I understood, though the international law could be applied in DBSK’s contract, it is still the national laws that would be taken into consideration first. I would just like to ask what South Korean laws, particularly in the Civil Code as well as Obligation and Contracts would apply in this case?

    • Yes, I mentioned in the introduction that Korea’s Constitution requires the first legal recourse to be Korea’s national laws and statutes. However, the Republic of Korea is bound by the international treaties it signs, just like any country, whether it be a civil law or common law jurisdiction, to not break its treaty obligations in its national laws. This is why international law = the “minimum threshold” for national law…I hope this makes it clearer ^^

      • Yes, I understand, thank you. ^^ I was just curious about the national laws that could apply in this case and whether or not they’re the same as in my country.

        I have another (or a couple) of questions, I hope you don’t mind: since the contracts were signed when they were all minors (and assuming they didn’t have any legal assistance), wouldn’t the contracts be considered voidable? Because I have this theory that the SM contracts are contracts of adhesion wherein the party who has the upper hand or the one who is more knowledgeable (i.e. SM) are the only ones who made the terms of the contract and that these were presented to DBSK for them to sign or not. And in this type of contracts, since they’re one-sided (in terms of contractual terms), if there is a problem or it turns out to be unfair, wouldn’t the court usually rule in favor of the weaker party (ie DBSK)? I guess what I’m trying to say is, considering the members’ minority and the fact that they wanted to break into the entertainment scene, at the time they signed the contracts, it would seem like they didn’t have a choice and wouldn’t that be a ground to consider it voidable?

        And although the contracts have been amended, the fact that the FTC had ruled that the SME contracts were still unfair, would it have a bearing on the court case? I’m sorry if I ask a lot, I just really want to understand this case.

      • There’s no question that the signing of the contract happened under circumstances of social and economic inequality where SM definitely had the upper hand. How much the court will take this into consideration and how much weight the fact that the members were minors at the time will have is a matter of Korean law, and it’s something I can’t answer with a satisfactory level of certitude. Sorry…

        The FTC ruling as well as Hankyung’s case will definitely have a bearing on this case, thankfully in a way favourable to JYJ.

      • Thank you for answering. ^^ I really appreciate it. I just hope that JYJ can win this case. I feel like it would set a precedent.

        I would like to read the extra commentary too. Could you direct me to the sources? ^^ And does anyone know if there is an English translation of the DBSK contract or of the court decision in the provisional suspension of their exclusive contracts? I feel like it’s time I actually learned about what’s actually going on. Thank you.

      • @Aki
        Tell me which right/norm or treaty/convention you would like extra commentary on, and I’ll see what I can find for you…

      • I’d like to read more about the Berne Convention. Thank you for this, I really appreciate it.

      • Aki,

        This is a good start: http://www.wipo.int/treaties/en/ip/berne/

        Click on [PDF] at the end of ‘Additional Information: WIPO Handbook on Intellectual Property’ and read the section on the Berne Convention.

        I have a couple of other good commentaries on the Berne Convention but in pdf and word format so I can’t post them here. If you send an email to TheJYJFiles, I’ll send them to you.

  21. Thank you very much for this article! I started being interested into international laws since the begining of this case myself, and the way you explained it is very clear… awesome job!

    I have a question though: I read articles about SME being forced by the Fair Trade Commission to reduce the length of all of their contracts to 7 years. But do we know if the content of the contracts changed? Because if it didn’t, then I don’t get why everyone was cheering… :/

    On another note, I think that from a philosophical point of view, the real question should be: does a human being has the right to renounce to his/her human rights? (I think I have a subject for my next paper, haha)

    • The FTC pretty much ordered SM to revise their contracts to at least conform to the model contract the FTC released last year. I haven’t yet had a chance to look at it, but I’m sure it takes into account not only income distribution but also intellectual property law. These are, after all, essential elements of FAIR TRADE.

      • That’s great!! Fair Trade Commission is involving^^
        Maybe I’m just over worrying myself. I hope Korean government and the Commission is actually following up on checking the contracts. Not just sending out a note require SM to change the regulations, but actually checking if the contracts are legally structured! (Because I don’t know how crazy are the CEO and LSM)

      • Thanks for the info, in this case let’s hope that the model really is fair!

        Also, I thought again about the part in the article where you mention that individual rights shouldn’t be endangered, no matter what a specific country’s laws are.

        I decided to check my country’s laws (France) and I found a law in the Contract Law Code which is quite interesting : “No one may restrict the rights of an individual or group, unless the restrictions were justified by the nature of the task and proportional to the desired aim.” (Code du travail, Article L1121-1)

        This law, which is really broad, is usually used so that employers can rightfully tell their employees how to dress, and other things like that. However, it seems to me that it also means that as long as there is a purpose, and as long as the employee agrees to it, one can renounce to any right they want. By any chance, do you know if similar laws exist in other countries?

  22. Thank you Jimmie for writing this. It’s very interesting to read an analysis of this issue based on International Laws (it was pretty hard, though, since English is not my first language and legal terms make me dizzy xD).
    Absolutely LOVE the articles posted in this blog, they are deep, well written and make some good points.
    Also, the comments from the readers are also good and bring many interesting questions. Glad to see fandom so involved in a good discussion
    Keep up the good work!

  23. *nosebleed* I feel better now…

    Can you tell us something about the KFPCAI? is it right for them to prevent JYJ from promoting in Korea?

  24. Wonderful analysis Jimmie! You did it again and it was a good read. From what I read, the only thing I can think of asking is, how is the justice system in SK? Is it easily swayed? Corrupt? Known to arrive at surprising/questionable decisions?

    We all know that the government is fiercely protective of the “Hallyu Wave” and will do anything to prevent it from being a national embarrassment. Essentially, if JYJ wins, it would really put the government, the nation, and the so-called Hallyu wave in a bad light. In a country where saving face is an all-important value, do you think this will have an effect on the ruling when it comes out?

    • actually, I would argue that at this point it would be a loss of face for Korea if JYJ DIDN’T win this case (see my concluding remarks) because key treaty obligations are involved (esp those of intellectual property law which was a point of contention even during the US-Korea FTA Talks). Korea risks being labelled as an untrustworthy partner for any international agreement…if you can’t be trusted with little things, who will trust you with big things? The only way that Korea can save face right now is to show the world that it has reformed its Korean Wave industries to respect globalised standards…its court system upholding a clearly faulty and morally reprehensible contract that goes against these standards is the worst way possible for Korea to prove its cultural content is ready for globalisation.

      • Thanks for your article Jimmie–such dedication. I wish and pray that you are right and that the decision will go in JYJ’s favour next week. You can’t say a nation has truly progressed unless it has progressed in the areas of democracy, education, law, culture and human rights. Korea can show that they have truly developed into a first world country next week (which I hope for), or risk regressing on the internal stage (if they side with SM). I support JYJ 200%++ and wish them lots of luck and send them my best wishes as they head into next week. JYJ are the catalyst for some major changes that have already come, and am sure will continue to leave their mark in Korean music for future musicians. Supporting JYJ all the way!!!

  25. @pheonixia: By the way, I found myself nodding to your sentiments while reading your comment above. That is an interesting theory that no one has ever broached in all the comment forums I have read. That cult mentality could be the one causing these SMent talents to think that what they have is so good that anyone who has a contrary opinion is greeted with angry and hostile behaviors from the cult members.

    On a similar note, have any of you guys read about Plato’s allegory of the cave? This whole “saga” kind of reminds me of this story. JYJ, emerging from the cave, are the ones who have broken free from their chains are are seeing the light for the first time. The others remained trapped, only seeing shadows and thinking that these shadows are all there is to see…

    @Shhh: I also completely agree with your comment regarding the artists getting paid for next to nothing while they are the main workers of the company. Now I kinda feel sad that they have to pay for their own expenses (even for the manager whom they have to obey like he is God). They have to put up fronts, I agree. I cannot begin to imagine the mental stress they have to put up with just to carry on these appearances. I guess people should put their shoes into JYJ’s place before they criticize them about being greedy. Fighting for what is just and right is not greedy. It is neither a sign of ingratitude.

    Also, with such ridiculous contracts, the artists end up being trapped in their success; the more they earn, the harder it will be for them to get out of the whole thing (now I am suddenly feeling bad for SHinee).

    @Jimmie: In Korea, if a contract is signed by a minor, even though he is not forced, why is it considered valid? Or is this one of the main issues tackled in this case?

    Thanks!!!

  26. Hi Jimmie

    like other commenters have mentioned does the fact that they were minors when signing the contract play a huge role in the case. I know back here, the contract would be voided easily due to fact that they were minors when signing the contract and also the lack of independent counsel to explain the repercussions of signing such a contract. In addition, a minor’s contract will be checked in court to ensure that it does not violate/ exploit their rights. Does Korea have any laws protecting minors from exploitation when they sign such contracts because its pretty clear some parents would be willing to sign the contract irrespective of the consequences just to ensure their children fame.

    • What I find alarming is that more younger idols are debuting into the industry and there seems to be lack of laws protecting them from exploitation from the industry itself and also the parents.

    • Here’s my response to another reader with the same question:
      There’s no question that the signing of the contract happened under circumstances of social and economic inequality where SM definitely had the upper hand. How much the court will take this into consideration and how much weight the fact that the members were minors at the time will have is a matter of Korean law, and it’s something I can’t answer with a satisfactory level of certitude. Sorry…

      With that said, considering that South Korea has ratified the Convention of the Rights of the Child, there has to be at least a minimum protection of minors in Korean contract law.

      • Thanks for the answer Jimmie. I read somewhere that JYJ wanted to have their contract to be declared null and void because it was unfair in the first place. I hope that the fact that they are minors when they signed it will also have a strong bearing on the ultimate outcome of the case.

        Perhaps JYJ did not intend for this case to be that big with such a huge implication, but I have a feeling that once we hear some kind of news on the 18th, this will become huge all over mainstream international media and how shall we say it, “the sh*t will hit the fan.”

        For good or for bad, I am one with you and the readers here that the case will lead to better things in the future for the Kpop industry that we all love. Meanwhile, I will be here everyday, waiting for your next post 🙂

  27. Thanks Jimmie. You and this site are really a great asset to JYJ’s fandom, you are upgrading the intellectual level of the fans. Reading all the comments, questions and answers, from fans coming from different walks in life is so enriching.

  28. Pingback: DBSK’s Contract under SM from the Perspective of International Human Rights, Labour and Intellectual Property Law « jyj3

  29. Pingback: Contrato de DBSK en el marco de SM desde la perspectiva de los derechos humanos internacionales, del Trabajo y Ley de Propiedad Intelectual « OurJYJ

  30. Thanks Jimmie. I like your analysis. I really hope someone can translate your article into Japan language and spread it cause many Japanese don’t understand English.

  31. @Pheonixia’s post on Jan 15, 2011 at 12:38am
    This cult mentality stuff is very real in our life regardless of what religion or beliefs you are from. Do not know how much research has been done on this to be proven true but those who has personally gone through similar event should be able to tell you at that point of time, the so called ‘rookie’ might really regard the ‘head’ in the family in this case as father. It’s will comes a day where that ‘spell’ be broken when something eventful take place . Some will take months or even years, when the day the one who managed to break off that spell , he or she will come to their senses but couldn’t exactly tell why they didn’t do it earlier. By theory, it is very possible to control ones mind even you have a strong mindset(but a strongest mindset person will still have their ‘low’ day to start off and events take place from there). Pheonixia, your every word in your post above is worth reading. Thanks.

  32. Pingback: | Standup4JYJ

  33. Pingback: DBSK’s Contract under SM from the Perspective of International Human Rights, Labour and Intellectual Property Law. « JYJ's Fan Worlds

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