Korean Copyright Reform: Don’t Stifle Korean Filmmaking

Used with permission

The Korean film industry is one of the major artistic and cultural successes in Asia. The industry was propelled to prominence in Europe and North America through the 2019 film “Parasite”, which won the Palme d’Or at Cannes and Best Picture (plus three other awards) at the 2019 Academy Awards. Korean films have come a long way from the days of the “screen quota”, a measure first imposed by the Korean government back in the 1960s in an effort to promote Korean content. It required Korean movie theatres to devote a minimum of 146 days per year to screening Korean films, and became a major bone of contention between Korea and the US in the period leading up to the negotiation of the Korea-US free trade agreement. The screen quota had the perverse effect of forcing many theatres to go dark for weeks at a time for want of Korean content. A much-reduced screen quota still exists on the books but has become moot because of the spurt in creativity of Korean filmmakers and the resultant investment in the sector. This demonstrates that good stories, production values and talent make films commercially viable, not government quotas. Typically, domestic Korean films take 50-60 % of the box office, a high percentage in comparison to many other countries. The Korean film and television industry generated a total economic contribution of USD18.45 billion in 2018 and supported over 300,000 jobs. That is quite a record—but it is in jeopardy.

Korean filmmakers, like those in other countries, draw inspiration for telling compelling stories from real-life events, but a currently proposed amendment to the Korean copyright act could put such historically or “true story” based films at risk. The amendment would create a “portrait right”, which would be accorded to “a person (in Korea) who can be widely recognized by the general public as the object of a portrait”. This would confer a property right on that person or their estate that could be utilized commercially. The right would exist for the lifetime of the person in question plus an additional thirty years. It is unprecedented for portrait or publicity rights to be incorporated into copyright law, and its enactment could enable publicly recognizable persons to block film productions in which they are portrayed. Recent domestic box office and artistic successes such as “The Age of Shadows” (a 2017 Academy Award submission) or “The Man Standing Next” (selected for the 2021 Academy Awards for Best International Film) might not have been made.

The great stories told through movies and television productions that we all enjoy so much are inspired from a variety of sources—novels, sci-fi epics, history, traditional children’s tales and, of course, real-life events and people. In a non-Korean context, think of films like Flight 93, Saving Private Ryan, Argo, All The President’s Men and others that are based on real-life events (although considerable poetic licence is usually incorporated into the scripts). Then there are biodramas like Milk, The Iron Lady, Erin Brockovich, and The King’s Speech, not to mention the popular Netflix series The Crown, with Season Four now released. Some of these works hew more or less to the historical record, others use real characters in highly fictionalized roles. There are also documentaries that tell a story using actual footage, some well-known recent ones being, They Shall Not Grow Old, Social Dilemma, Tiger King, Wild Wild Country, and so on. We all have our favourites. You can add your own. Now imagine that someone featured in those films objects to the portrayal of themselves, or perhaps a family member of a portrayed deceased person objects, can you imagine the chilling effect on creativity?

This is a problem that filmmakers already face, dealing with what is often referred to as the “right of publicity”. Normally if a studio is going to make a film about a living person, it acquires life-story rights. If it doesn’t there is a risk of a defamation or an invasion of privacy suit if the subject does not like the way in which they are portrayed. A good example of this was the lawsuit launched by family members of the deceased mariners portrayed in the film, The Perfect Storm, who sued for a portion of the film’s profits based on what they claimed was an inaccurate portrayal of the ship’s captain. The case was tossed on First Amendment grounds, but it shows the risks. There have been other cases in the US involving not only filmmakers but also makers of electronic games. In the US, these suits are normally dealt with through state-level legislation dealing with defamation. In some states, there is an exemption for filmmaking. Suffice to say, it’s complicated.

Imagine how much more complicated it would be if the right of publicity became a property right, incorporated into copyright law. In addition to acquiring life-story rights for the subject of a biopic, and the negotiations that take place to obtain rights that enable films to be made (licensing the rights to a book, script, music, and so on), filmmakers would be required to negotiate with those portrayed in a film, or with their estates assuming that copyright was still in effect. Making the publicity right an element of copyright law would greatly complicate film production; story-telling through films based on real events would grind to a halt.  

As noted above, in other jurisdictions publicity rights are protected by defamation or privacy laws, but they are not a property right protected by copyright. There is no creativity in being the subject of a film or book. Moreover, the definition of “portrait” in the proposed law is not clearly defined. The “portrait” does not even have to be of a famous person, simply anyone who can be recognized by the public. As another example, the award-winning Korean documentary In the Absence, a moving film about the Sewol ferry disaster that resulted in the deaths of 250 high school students, might not have been made because it clearly depicted the captain, who abandoned the ship and survived. If this clause survives and makes it into the revised law, this will impede a constitutional right to free speech and threaten filmmaking in Korea. At the very least, an exception to the portrait right is required for biopics, docu-dramas, films of historical fiction, documentaries, news broadcasts, and other similar works.

Another proposed problematic copyright act amendment in Korea is a proposal for “additional economic rights” for authors. This is a contract adjustment measure that would override freely negotiated contracts between authors and those with whom they have reached a contractual arrangement for licensing of rights, and is based loosely on the “best seller right” adopted in the EU (but not yet incorporated into member state law).  There is a symbiotic relationship between creators, such as authors or performers, and the distribution platforms (publishers, labels) necessary to disseminate their work. In most instances, the distribution platforms assume the risk by paying upfront for the rights to works which may, or may not, be successful. This proposed amendment would give authors a second bite at the apple if the work is very successful. The operative wording is, “in the event that there is a significant imbalance between the remuneration received by the author in return for the transfer of property rights…the author may request additional remuneration from the transferee”.

As in many things, the key lies in interpretation. What is a “significant imbalance”? And what impact will this have? Experience suggests that requiring a renegotiation of contract terms if a work is successful will result in lower upfront payments to authors as this creates great uncertainty for publishers who are required to make provision for potential additional payments if a work succeeds. Most authors prefer the security of a guaranteed upfront payment in lieu of a smaller initial payment which might be supplemented by additional revenue, but only in the case of unusual success. With regard to filmmaking, a high risk and expensive undertaking with contributions made by many different parties, it is important that copyright law not restrict freedom of contract. Fortunately, the current draft exempts cinematographic works from the additional remuneration right, as it should.

Other problematic amendments include the definition of “works for hire”, where the wording suggests that the author owns the work, even if completed as part of an employment contract. Although the amendment states that the work is “deemed to have been transferred” to the employer, the current law which states that the work is automatically owned by the employer is much clearer, removes any ambiguity and is consistent with the interpretation in most jurisdictions. Another potential concern is a provision on extended collective licensing, or mandatory tariffs. This is a common element of copyright law used by collective management organizations to apply approved tariffs to unlicensed users of music and publications.  Collective licensing normally does not apply to films and AV products, which in any case are meticulous about licensing content and music, and it is hoped that this will continue to be the case in Korea.

In sum, given the importance of its film industry to Korean culture and telling Korean stories, international best practices should be followed. Korea’s copyright laws should be designed to encourage its filmmakers, not stifle them.

© Hugh Stephens 2020. All Rights Reserved.

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