A Cosmetic(s) Discourse, Part II:
Yo’ Mama is More Relevant
In the first part of this series, we deconstructed the very cosmetic cosmetics discourse. Uncovering its argument structure, we determined that it suffered logical flaws in its attempt to prove that it was the members of JYJ and their involvement in a cosmetics business that caused the current 3:2 split of TVXQ. However, although we have challenged its argument process, we have yet to directly challenge the argument itself. In this second part of the series on the cosmetics discourse, I will start pointing out major problems with the assertion itself that Jaejoong, Junsu and Yoochun’s involvement as individual investors in Crebeau caused the current crisis of Dong Bang Shin Ki.
Real Person v. Fake Person
Proponents of the cosmetics discourse, including SM Entertainment, like to assert that the members of JYJ left SM to pursue their investment in the cosmetics business, and because the trio left SM they also left Dong Bang Shin Ki, consequently breaking up the group. The underlying assumption here is that SM and Dong Bang Shin Ki are one and the same; that since SM “created” Dong Bang Shin Ki, the group cannot exist outside of SM.
However, SM Entertainment and TVXQ are two separate and different legal entities, having different rights and obligations in conformity to their different and very separate legal statuses. The members of TVXQ, as flesh-and-blood human beings, are natural persons whereas SM Entertainment, as a non-human corporation, is regarded as an artificial (in more ways than one) person or as having legal personality[i]. Already the assertion pushed by the cosmetics discourse that JYJ leaving SM broke up Dong Bang Shin Ki is on shaky ground. SM Entertainment and Dong Bang Shin Ki are not one and the same; it is perfectly possible for the group to exist and pursue activities as TVXQ outside of SM. In fact, one of SM’s former idol groups, Shinhwa, is doing just that: the group is no longer under or with SM but continue to function as Shinhwa, even with their members in different management companies. Recently, another idol group, SS501, also split into different management companies but continue to exist together as SS501; this doctrine of legal personality clearly differentiates their management companies from the idol group. Consequently, it is also possible for any or all members of Dong Bang Shin Ki to leave SM Entertainment but continue to be part of Dong Bang Shin Ki. In fact, this is what the members of JYJ wanted[ii] [iii]. The problem, therefore, could only lie in SM’s obstinate refusal. In this context, there is no problem with JYJ’s assertion that they left SM, not TVXQ, and that they are still TVXQ members.
This fundamental legal construct of natural v. artificial personality is also present in the reasoning behind the rejection (twice) of SM’s application to trademark the name Dong Bang Shin Ki in traditional Chinese characters. As patent lawyer Jeon Sojeong points out, “What Dong Bang Shin Ki’s management company SM Entertainment failed to recognise is that the very act on their part of filing an application for trademark registration for ‘Dong Bang Shin Ki’ underscored the fact that Dong Bang Shin Ki and SM Entertainment are clearly two separate legal entities…”[iv]
Further conversations with a colleague in a reputable law school in Korea and another in a reputable law school in the United States revealed that SM can never claim complete and irreversible ownership of Dong Bang Shin Ki in any form. The most that SM can claim are limited rights to use the name of the group for promotional and related business activities; this is essentially what registration of a trademark is. Korean patent law makes it clear that when a trademark is connected in any way with a famous natural person even this right is not absolute. The more the general public associates a registered name with the famous person to whom it refers instead of the management company that registered the name, the final say lies with that person. In other words, at this point, if the members of JYJ object to the way SM is using any variation of the name ‘Dong Bang Shin Ki’ or their stage names there’s a high chance of them winning against SM. If the trio ever do raise objections, it’ll be clear for all to see that TVXQ and SM are separate and independent entities, with or without a cosmetics business in the picture.
The Pursuit of Happiness 101
For all its claims that it isn’t against celebrities making personal investments, the cosmetics discourse sure likes to take a mick out of JYJ’s investments in Crebeau. It essentially puts forth the idea that the act of investing in a side business represents a conflict of interests for singers such as the three members of Dong Bang Shin Ki. As such, it erroneously asserts that SM Entertainment had the right and obligation to intervene but the obstinacy of the three members in disregarding their management company and continuing their investments caused the breakup of TVXQ.
First of all, the three members of Dong Bang Shin Ki invested as individuals, not as representatives of SM or even as representatives of their group. This is something even SM has thus far not challenged. Therefore, there is no conflict of interest. Kim Jaejoong, Park Yoochun and Kim Junsu as three individuals and recognised citizens of a modern, capitalist, democratic State known as the Republic of Korea—or South Korea in the vernacular—whose Constitution guarantees the right to pursue economic wellbeing and happiness (Preamble, Article 10)[v] were exercising a basic right when they invested in Crebeau cosmetics. Though the three were respectful enough toward their management to seek and obtain its permission before entering this personal venture[vi], they did not need to. No matter how sacred a long-term exclusive contract is, it doesn’t trump the Constitution of the Republic of Korea.
Unless SM Entertainment, in its capacity as a legal person, had participated in the same investments with the trio through official contractual channels, it had absolutely no right to interfere in their personal investments. Notwithstanding the trio’s basic rights as South Korean citizens, SM Entertainment, in not making an investment itself in Crebeau, did not incur any risk. Any risk, loss or gain as well as the responsibilities that come along with it would have fallen squarely on the individuals making the investment, in this case Jaejoong, Yoochun and Junsu, and no one else. This is not even legalese. This is straight-up common sense…no liability, no right to interfere.
Even if, as SM claims, the cosmetic business were involved in criminal activity, SM still has no right to interfere in the trio’s private lives the way it did. In that case, SM should have (and would have if there were no other ulterior motive) referred this to the relevant national authorities. Or has the company become so caught up in its self-imposed image of Town and Kingdom that it disregards completely the State and Government that make it possible for the company to function? Now that is true ungratefulness. If indeed the cosmetics business turned out to be dodgy and it became publicly known, causing a media pandemonium that threatened to tarnish TVXQ’s image, this would reflect badly on SM’s management skills in the PR department, not on the act of the three members investing or their right to do so.
No wonder the Korean public attorney dismissed SM’s charges against Crebeau and sent SM away with a sharp telling-off on mishandling the affair PR-wise, abusing Korean governmental authority for its own petty agenda and neglecting the appropriate legal channels for dispute resolution[vii].
The Economics of Hallyu-land
The cosmetic discourse’s insistence that SM had the right and obligation to interfere in Jaejoong, Junsu and Yoochun’s side business rings even more ridiculous when observing the behaviour of the Korean entertainment industry’s representative celebrities. Almost all of them have invested in a side business; many of them have even gone beyond that to own their own business, openly using their celebrity status, name and portrait rights in operating their ventures. Movie actors, television actors and singers alike engage in this activity, since these side businesses serve in many ways as their back-up plan should their fame fade or their career suffer a downturn. Singer Baik Jiyoung operates a fashion outlet; Hallyu stars Kwon Sangwoo and Jeong Wooseong have—heaven forbid!—invested in cosmetics companies[viii]. And yet their managements aren’t making a big fuss, and they certainly aren’t getting their knickers in a bundle about the potential damage to image should the investments of their contracted artists flop miserably.
If anything, the management of the actors and singers who invest in side businesses seem to stake their reputation on how well it handles these failures. Actor and comedian Lee Kyeonggyu owns and has invested in dozens of side businesses from fried chicken to pizzas to rice rolls, slapping on his face and name on every one[ix]. For every successful investment, he has had at least 10 failures[x]. Yet, the Korean public wasn’t aware of this until he himself confessed it, with his own mouth, on national television. Until that point, his management had done such a good job hiding and handling the failures that it was only through someone who knew someone who knew someone who knew someone close to Lee Kyeonggyu that anyone heard a hint—“I hear the reason why Lee Kyeonggyu is now back on TV so much is because he failed in so many of his investments, he needs to make it back up.”
Are we to believe that SM Entertainment, the industry leader in the Korean market for the management of Hallyu musicians, couldn’t do the same?
The Management of Yo’ Mama
Therefore, if it is such common practice for Korean celebrities to freely exercise their basic right to invest (many of them in cosmetics companies just like JYJ’s) under a legal system that recognises them as separate and independent agents, why is it proving to be so difficult for the members of JYJ? Wherein lies the difference between JYJ’s case and those of the aforementioned Korean entertainers?
It is, in fact, in their management. The management of practically all the Korean actors and singers mentioned above operate differently from that of Dong Bang Shin Ki’s. Many of them are closer in nature to the American agency—much like C-JeS Entertainment—and those that are still considered traditional Korean management companies appear to have a vastly different business philosophy when it comes to managing their contracted artists. Apparently, they don’t suffer from bi-polar disorder when it comes to allowing their artists to pursue supplementary economic activities; they understand the privileges and limitations of their legal personality when it comes to interfering in the private lives of their charges; and they certainly don’t threaten or blackmail their artists into choosing between their career as entertainers and their side business. SM Entertainment has not only committed all these acts considered taboo by their peers but has made it physically (although not legally) impossible for the members of JYJ to continue as members of Dong Bang Shin Ki, and this is what caused the breakup of Dong Bang Shin Ki.
In the end, it was SM Entertainment that split up Dong Bang Shin Ki.
The cosmetics business is about as relevant to the discussion as a ‘Yo’ Mama’ joke.
Written by: Jimmie of TheJYJFiles
Shared by: TheJYJFiles
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