December 21, 2015

Merry Christmas & Happy Holidays from IPG Legal





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Sean Hayes may be contacted at: SeanHayes@ipglegal.com. Sean Hayes is co-chair of the Korea Practice Team at IPG Legal. He is the first non-Korean attorney to have worked for the Korean court system (Constitutional Court of Korea) and one of the first non-Koreans to be a regular member of a Korean law faculty. He is ranked, for Korea, as one of only two non-Korean attorneys as a Top Attorney by AsiaLaw.

November 11, 2015

Defamation Law in Korea: Entertainment Companies Beware

The crime of defamation, in South Korea, is vastly different from defamation laws in many Western countries. Most Western countries have, only, civil liability for defamation and much stricter requirements even for civil liability.

In the United States, the alleged defamation (civil) against a person must be a false statement.  The truth is a complete defense.

Owing to the First Amendment's protection on free speech (New York Times vs. Sullivan), additional requirements may also apply, such as requiring the statement to have been made maliciously (knowledge that the statement was false or reckless disregard for the truth), while the truth is an absolute defense.  However, in South Korea, people may be held civilly liable and may be criminally punished even for a true statement.  The Korean criminal law, in question, may be punished under the following clause in Korea's Criminal Law and other clauses and laws.
 Article 70 (Penal Provisions) 
(1) A person who commits defamation of another person by disclosing a fact to the public through an information and communications network purposely to disparage his/her reputation shall be punished by imprisonment, with or without prison labor, for not more than three years, or by fine not exceeding 20 million won.
(2) A person who commits defamation of another person by disclosing a false fact to the public through an information and communications network purposely to disparage his/her reputation shall be punished by imprisonment with prison labor for not more than seven years, by suspension of qualification for not more than ten years, or by fine not exceeding 50 million won.
(3) The public prosecution may not prosecute the crime under paragraph (1) or (2) against the victim's will explicitly manifested.
[This Article Wholly Amended by Act No. 9119, Jun. 13, 2008]
This broad definition of what constitutes defamation (which includes truthful statements) extends into the cyber world.  Cyber defamation, in Korea, also requires the additional element of posting something with the intent to "purposely disparage."

In this way, we can see that cyber defamation laws in Korea are somewhat analogous to "stalking laws" in other countries, requiring that the alleged defamer go the extra step of actively pursuing his victims.  However, this element of the crime is, typically, not difficult to establish.

We can imagine a hypothetical situation where someone pays for a service that he isn't satisfied with, then goes home and posts a (truthful) account of what happened on the internet. The action may constitute defamation in Korea.  In typical cases like this, a fine is imposed.  A fine for non-Koreans may lead to deportation.

What do you think? Should the truth be an absolute defense to defamation?

Please see our other posts on defamation at:
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Sean Hayes may be contacted at: SeanHayes@ipglegal.com.

Sean Hayes is co-chair of the Korea Practice Team at IPG Legal. He is the first non-Korean attorney to have worked for the Korean court system (Constitutional Court of Korea) and one of the first non-Koreans to be a regular member of a Korean law faculty.

Sean is ranked, for Korea, as one of only two non-Korean lawyers as a Top Attorney by AsiaLaw. Sean's profile may be found at: Sean C. Hayes

Globalizing your Brand with Rugby

They say rugby is the game that they play in heaven and heaven looks a lot like New Zealand - if you are an All Blacks supporter.

Its been a little over 10 days since the finale of the 2015 edition of the Rugby World Cup in England.

Considered by many to be the best ever tournament, since its inception - of course until the next one at least.

While not a mainstream sport in Asia, rugby's impact will take on a significant impact from 2016 in the Asian region.  An Asian team, the Sunwolves, will join the Super rugby competition for the first time. The next World Cup in 2019, will be played out across Singapore, Hong Kong and Japan.

The 2015 edition showed the significant impact of sports partnerships with Samsung being one of the major winners of rugby's surge into Asia. 25 million people tuned into Japan's match against Samoa alone.  If you asked anyone on the street their adopted second team was from Asia. This is the time now for Korea to brands itself proactively and step into the fray.

For Korean companies this can, potentially, be an enormous opportunity to capitalize on the momentum of the Winter Olympics in 2018.  Sports partnerships continue to be significant in capturing potential new markets.

With audiences growing globally its vital for Korean companies to look at long-term global partnerships to promote their brand. You can't argue with rugby's popularity. Approximately 120 million people watched the conclusion in London and I for one would love to see Korea involved more in 2019.
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Dan Gardner may be contacted at DanielGardner@ipglegal.com. Daniel Gardner is an in-house Commercial Advisor for IPG Legal.

September 21, 2015

How the Korean Shirt Seller can Enhance Your Commercial Success in Korea


Football does funny things to people - it makes men cry.  You can't put into words the hollow feeling a Liverpool fan losing to Manchester United is akin to a death in the family.

The transfer season in football is a stressful time for most football fans. Player transfer can generally make or break your team's season, star signings by a manager can generally mean glory for fans and commercial bonanza for teams. A member of your national team is like the birth of a child in the family. Work stops and strangers come together to celebrate.

Commercial strategies have become more apparent with each transfer season, with team's now focusing on the commercial potential of the Asian fan base. The 'shirt seller' has become an important tool for European football teams.

The 'shirt seller' has become a popular term coined by the big teams in Europe purchasing a player from Asia. Tottenham Hotspurs in the English Premier League recently bought Korean young gun Son Hyung Min into their ranks. Min is Korea's equivalent of Le Bron, the go-to guy on the Korean National team. His acquisition represents a significant commercial boost for Tottenham in Korea.

Partnering your brand with a Korean face like Min can lead to an immediate commercial impact in Asia. Min had, previously, played with a mid-level team in Germany's Bundesliga. Min's games from Germany were televised on a weekly basis into Korea with a localized commentary and there was the knock-on effect of increased shirt sales and other commercial opportunities with Korean companies looking to expand into the European market. With Min in the Premier League many would consider him the natural successor to Park Ji Sung, Manchester United's ambassador in Asia. Part of Park's success with United is that Korean's love a winner.

Min's commercial impact in Korea will become significant over the next few months - increased broadcast time in Asia and access to Korean sponsorship. Football teams in Europe are placing greater emphasis on the commercial value of Asian fans with the increased number of pre-season tours in the region. With Min at Tottenham, Koreans will also be keeping an eye on Lee Seung Woo, the 'Korean Messi' at Barcelona, the next big thing after Min. Korean players have become a window for commercial opportunities into a major Asian economy.
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Dan Gardner may be contacted at DanielGardner@ipglegal.com. Daniel Gardner is an in-house Commercial Advisor for IPG Legal.

BCCW 2015: Opportunities for Content Partnerships in Asia

Planning trips to content markets can be an expensive affair, Busan or BCCW? When you compare the two BCCW is like a younger Kardashian sister, you have to watch. The Seoul event serves as a major calendar event leading into the Busan Content Market in October. The market kicked off this week with the news of Netflix's proposed expansion into Asia in 2016.

BCCW provides an opportunity for buyers and sellers to connect after MIPCOM. The format content market still represents Korea's best hopes of surfing the Hallyu wave as a number of US and European networks have shown interest in the development of Korean formats over the last 12 months.

Focusing on the direction of global content, TVN's Grandpa Over Flowers sale to NBC was a milestone for Korean content. It represents the first Korean variety show sold to a US network. Better Late Than Never followed  a lineup with William Shatner, George Foremen, Henry Wrinkler and Terry Bradshaw traveling around Asia.

Korean networks have been equally as aggressive over the last 12 months in the search for fresh ideas.  Suits was sold by NBC Universal International to Korean production company Entermedia Contents. Prisoners of War, the original Homeland series, was acquired by J-Star media for the Korean treatment. Another milestone for Korea as both represent first time Asian adaptions of mainstream US shows.

With Netflix on the horizon 2016 could possibly be a defining year for Korean content.
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Dan Gardner may be contacted at DanielGardner@ipglegal.com. Daniel Gardner is an in-house Commercial Advisor for IPG Legal.


Afreeca TV & The Magic of Mokbang in Korea

Afreeca TV has been a genuine local player in Korea. Afreeca TV has taken on a unique business model to monetizing user generated content. Instead of revenue generated through banner advertising, Afreeca focuses on the gift sharing model, in other words users decide the value of the live content they watch. The majority of Afreeca's users follow the Korean concept of 'Mokbang'.

'Mokang' is a combination of the Korean words for eating and broadcast. Broadcasts are mainly intended for single people who are looking for company at meal times. Performers are known locally as 'broadcast jockeys'.

Broadcast jockeys will receive virtual currency from viewers which can then be converted into real cash. The high-end Mokbang performers will generate over $1000 USD for a two dinner show.

For Afreeca TV the model has been highly lucrative. Afreeca will charge a commission of 30% to its performers and with some generating several thousand dollars per month this has become a full-time profession for some of the high-end broadcast jockeys.

Viewers are able to directly communicate with Mokbang performers during the broadcast. With more than 3 million viewers tuning in daily, Afreeca is looking to expand further outside of Korea with offices in Japan and China on the horizon.

You can view Afreeca TV at: Afreeca TV
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Dan Gardner may be contacted at DanielGardner@ipglegal.com. Daniel Gardner is an in-house Commercial Advisor for IPG Legal.

Did Anyone Notice Apple TV Korea this week?

I have a colleague in the office who truly believes in the power of positive affirmation. I have to confess I found him in the bathroom this week talking to his phone. Not on his phone but to his phone - "Android Rules, Size doesn't matter, I love your widgets." He loves his phone but did anyone notice the Apple TV?

Apple product launches are major news in Korea. The Apple TV isn't about penetrating Samsung's grip on the television market. It represents the next evolution into content production and distribution. Apple creating original content is not as far fetched as it sounds considering Steve Jobs' successful relationship with Pixar.  Apple has also had a history of distributing independent film through Itunes.

Apple's music streaming service is still in its infancy stage but moving into content production and distribution would put Apple into direct competition with Netflix, Amazon and Hulu.

The question for Apple would be what type of content? While it is still early to speculate the long term ramifications would be of interest in Korea with consumers becoming more Apple friendly in Samsung's home court.

For Korean content providers, Apple branding on Korean content would be perceived locally as a major win. For Korean companies now could be the time to reach out.

Yes it is early days and only speculation for now but 2016 will change how we watch content as Netflix has shown us. 
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Dan Gardner may be contacted at DanielGardner@ipglegal.com. Daniel Gardner is an in-house Commercial Advisor for IPG Legal.

September 7, 2015

Sports as Tool for Growth in Developed Economies Like Korea

It's difficult to understand the relationship Americans have with their football teams, there is some religious transcendence in playing with a dead pig skin every Sunday. When I say football I do mean the NFL and not the round ball kind. My senior colleague recently introduced me to to the intricacies of American football - The NFL, as an Australian I am still learning the ropes.

The NFL is taking on a little more global significance as a rugby league player from Australia was included in the playing roster of the San Francisco 49er's over the weekend. Its significant for a couple of reasons - he was a player who dominated rugby league in Australia and he had never played NFL before. Through his success Australia is being promoted again in mainstream US media. With the World Cup less than two weeks away the global focus is shifting towards rugby. Korea needs to be involved!

Global sports like rugby, while not mainstream in Korea, can become a unique opportunity to promote a national brand at a time with the Korean Ministry for Tourism and Culture is looking for new ways to maintain the momentum of the Korean wave and interest in Korean culture. Its time to look beyond the traditional areas and invest in something a little more global.  Korea needs some skin in this game!

Asia's involvement in rugby will increase over the next five years with Japan to enter a team in the Super Rugby competition in 2016. This competition draws participation from Australia, New Zealand, South Africa, Argentina and has a major television audience throughout major European markets.

In 2019, Hong Kong, Singapore and Japan will host the World Cup, an event in scale to the Summer Olympics. Again Korea needs to be involved! Hosting an event or a match for the 2019 World Cup would draw much needed tourism and global focus on the country.

Rugby isn't a traditional sport in Korea with only two major teams and some scattered junior developmental programs. Developing a long-term plan that includes  an increase in junior development and a greater involvement from Korean teams in overseas competitions would open the doors to increased awareness of Korean culture and Korean global brands.

With the World Cup less than two weeks away Korea needs to get off the sideline and get in the game. A Korean rugby team is something I would Gangnam Style for.

Dan Gardner may be contacted at DanielGardner@ipglegal.com. Daniel Gardner is an in-house Commercial Advisor for IPG Legal in the Media & Entertainment Law Team.

July 29, 2015

KWeb Series Festival 2015: Great Opportunity for Korean and Foreign Entertainment Companies

In Korea, web series are becoming a new avenue for film-makers to capture new audience share in Korea. The KWeb Series Festival is being held for the first time in Korea with the support of other web series festivals in Europe, US and Australia.

Festival Director Young Man Kang shared his thoughts on the possibilities for web series in Korea.

What was your inspiration for starting the KWEB Festival?
I spent 18 years in Hollywood and made several feature films in LA and 4D commercials with international crews in Korea. I also shot local commercials and music videos.

Through those experiences I have been watching the changing trends in Hollywood. I have always been fascinated by emerging technology and new trends.   I have always been inspired to work with new technology in the digital field. I went from 35mm, digital, 3D, 4D and then the next step was a  web series. I wanted to have experience in all new media. After attending the LA WEB Fest in Los Angeles, I received support from the organizers of that festival to launch KWeb Festival.

Whats next after the next step after the KWeb Festival?
I don't know I am still learning about the potential for web series. Through major entertainment companies, the production of web series have increased in Korea. The issue though is that Korean filmmakers still experience difficulties selling their ideas to major western markets because they are still learning the correct terminology.

For example, people in Korea use the term 'web-drama' but no one is using this term in Hollywood or Europe. Webseries is still a new term in Korea. If you type web drama into Naver then you will get alot of results. English marketing and web based marketing is a powerful tool not being fully utilized in Korea. KWeb Fest helps Korean filmmakers sell their ideas to Western markets. There are still walls and someone needs to break that wall for Korean filmmakers. This type of event is great for the audience to connect with these filmmakers. Panels and seminars at KWeb Fest will help us achieve that. It is a great opportunity to connect Korean film makers with other festivals in LA, Melbourne and Marseille.

What were some of the issues  that you had  in terms of acquiring content and dealing with overseas producers?

I was lucky because I have an association with the Los Angeles Webfest. We have a great relationship. When I attended the 2014 festival in LA and I built a great a relationship with the founder Michael Ajakwe. At the LA Festival there were 500 submissions from all over the world but there were no submissions from Korea, China or Japan. He was wondering about Asia's participation in web series.

How did you educate the local community in Korea on the differences between web drama and web series?

In the beginning it was very tough. People did not know the term web series and only knew the term web drama. The younger generation understand web drama as they watch these through their smart phone. In the beginning we had a hard time and we educated people through blogs and seminars.

Do you expect to see more support from government agencies for web series festivals in Korea?
I hope so, government funding is extremely helpful. However the resources are quite limited as there several festivals in Korea. All the festivals are competing for the same funds and we tried to explain the differences in a web series festival. We are using a completely different system as opposed to main stream festivals. The first year is tough as government agencies are getting to know us.
On the other hand they gave us credit because I have strong overseas associations with partner festivals. Because of the international associations with the overseas web series festivals there are opportunities for Korean filmmakers to access a wide distribution network.

The KWeb Fest will be held at the K-Hotel July 30th - 31st.  The Facebook Page for KWeb Fest may be found at: KWebFest

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Dan Gardner may be contacted at DanielGardner@ipglegal.com. Daniel Gardner is an in-house Commercial Advisor for IPG Legal.

June 21, 2015

What Does the India-Korea Co-Production Agreement Mean to the Korea & Indian Film/Entertainment Markets?

An Indian colleague recently reached out to me wanting to discuss the brand value of the Bollywood market in East Asia. 

Domestically, India continues to be a major market for domestic film production. In an effort to globalize the Indian market a number of producers have been reaching out to East Asia in order to form co-productions with China. Indian stars are also looking to globalize their appeal through product endorsement in East Asia. What does this mean for the Korean Film Industry?

The recent co-production agreement between India and Korea opens up commercial opportunities in one of the largest entertainment ecosystems in the world.

These types of co-production agreements allow for equal treatment of Korean and Indian productions and access to the same benefits of local productions in either country.  Korean productions are, also, exempt from local staffing quotas and still eligible for domestic benefits.

To qualify as a local production 20% of the budget must come from the partner country and 30% for television production. Over the next 12-18 months there will be interest from producers and content providers from both sides to expand cultural influence into new markets. Indian producers will have greater access to wider distribution points in East Asia such as CJ and Showbox. At the same time, the Indian market represents a unique opportunity for Korea to penetrate a relatively young tech-savvy population through remakes of popular Korean titles.

We look forward to the exciting opportunities that develop between Korean and India. 

These articles may, also, be of interest:
Dan Gardner may be contacted at DanielGardner@ipglegal.com. Daniel Gardner is an in-house Commercial Advisor for IPG Legal.

June 1, 2015

Top 5 Tips for Working With A Korean Co-Producer

When making the decision to work with a Korean co-producing partner it is always paramount to perform your due diligence. We have dealt with a number of disputes between foreign and locally based production companies in Korea over poorly constructed distribution and production agreements and the lack of due diligence.

When seeking out a Korean based producer please consider the following:
  1. Has your potential new partner worked with foreign companies outside of the Korean marketplace before? If not, this may be a sign of issues to come.  Without significant experience meeting the expectations of non-Koreans, the clash of cultures may lead to significant growing pains.  Don't be afraid to ask for a reference.
  2. Has the co-production company worked with a major studio in the US or do they have a track record of successfully raising capital for international productions?  We find a good deal of punters in the Korean market that are great at the pitch, but less adept at closing deals. 
  3. Does the Korean co-production partner have a physical office space with production staff? If your co-production partner is working from a home office or in a coffee shop ask yourself why.
  4. How long has your co-production partner been in business? Do they have a track record of successful sales at international markets such MIPCOM? 
  5. Have you conducted background checks on the senior management?  The industry is full of sharks looking for their next meal.
  6. Create a distribution/co-production agreement that is specific to the Korean marketplace.   Don't just use a draft that you utilized in the past for a deal outside Korea.
  7. Get someone on board that understands the nature of business in Korean and have them assist in vetting the potential opportunity.
These articles may, also, be of interest:
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Dan Gardner may be contacted at DanielGardner@ipglegal.com. Daniel Gardner is an in-house Commercial Advisor for IPG Legal.

May 28, 2015

Attracting Hollywood Film Productions To Korea

The Avengers Age of Ultron has saturated theater screens for well over a month now. Nearly 70% of screens are still showing the Marvel action flick and with good reason.

Age of Ultron represents a significant investment on the the part of the Korean Film Council and the Seoul Metropolitan Government. Both organizations contributed 25% or approximately 2 billion KRW for roughly 20 minutes of screen time. Locals are inevitably asking questions whether this was money well spent.

Considering the amount invested by other governments in the Asia-Pacific region - are the Korean funding bodies doing enough to compete in this area? Parts of the film were shot in the Gangnam and Digital Media City area as well as along the Han River, close by the Mapo Bridge.

At the MOU signing with the producers last year, the Korea Tourism Organization promoted this opportunity as a boom for local tourism as the knock-on effect was hoped to have guaranteed an increase in visitors to Korea on the back of the film. Unfortunately that has not, yet, occurred.  Many locals have lamented that Seoul looks indistinguishable from other cities in Asia.

While there has been no significant increase in tourism on the basis of Avengers there are some positives to note. The film itself put more than 200 local crew and technicians to work in a major Hollywood production. Rather than focusing on potential tourism revenues local film bodies need to keep an eye on developing Korean crews and technicians.  This experience may pay fruits in the quality of local productions.  Korea has little experience in the high-budget action film realm.

To put the investment of KOFIC and the SMG into perspective consider Screen Queensland, a provincial funding body in Australia that invests more than 20 million USD in tax and location incentives, per year, and which attracted the entire production of Pirates of the Caribbean to be filmed in Australia.

The latest James Bond production, 'Spectre', received 20 million USD for its positive portrayal of the country and its police force, this was for roughly 4 minutes of screen time. New Zealand invested more than $200 million in the Lord of the Rings and Hobbit films and has increased their incentive programs to attract the sequel to Avatar. Part of the agreement includes a New Zealand promotional video to be included in the DVD and a premier of the film in New Zealand. Local Korean funding bodies need to develop other opportunities for local film makers to expand their presence to US market.

US producers are limited by their crew and technical choices to those without communication barriers and some of my US colleagues, rightfully note, that it is most cost effective to shoot Korean scenes in South-East Asia rather than use Seoul.

Local film commissions need to provide greater flexibility with their incentive programs and look for increases to compete in this area. By creating studio and post-production infrastructure for large scale productions and by expanding training for local technicians-  Korean film makers will have more opportunities to attract US-based productions to Seoul.

Avengers was a great move in the right direction.  
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Dan Gardner may be contacted at DanielGardner@ipglegal.com.
Daniel Gardner is an in-house Commercial Advisor for IPG Legal.