Idol Images and the Plight of Technology
K-pop Idols, members of global music groups, have some of the most fragile reputations. With the rise of social media and AI technology, false information and impersonations have run rampant. How can labels and artists ensure their right of publicity is untarnished?
Attribution
Concert by Wendy Wei on Pexels
As of September 24, 2024, the major K-pop label HYBE (creators of global groups BTS and Le Sserafim, among others) has announced it is cracking down on violations of its artists’ rights for their own safety and well-being. The rise of Artificial Intelligence (AI) deep fakes has led to an explosion of the exploitation of K-pop artists and their likeness, leaving many to wonder what remedies these artists and labels have. With the United States having the second biggest market share of K-pop consumerism, how are U.S. courts adapting to help hold these assailants accountable where necessary?
In short, they’re not. Historically, Korean defamation laws are considered to be among the strictest in the world. Embedded in their criminal code, the Republic of Korea allows for both a civil remedy and criminal prosecution, with punishments of up to ten years of imprisonment and fines of up to fifty million won (about $37,000) for sharing false facts through a public channel. Comparatively, the United States could potentially view a similar claim as an opinion. While a Korean tribunal would understand that a K-pop idol’s entire brand and image is highly susceptible to even (what a person in the United States may consider to be) a minute factual claim, a court in the United States might think differently.
While many fans fear seeing their Idol’s images being “torn down” by malicious and false information, whether it be through bullying allegations, dating accusations, involvement with international scandals, outfit malfunctions, lip-syncing allegations, deepfake content, or any other form of attack on their likeness and image, South Korean tribunals are struggling to get the United States courts on board. It cannot be understated that allegations as minute as some listed above could cause potentially detrimental damage to an idol’s image, with some even being dropped by their agencies due to these allegations. (See also). A large amount of these conversations take place on U.S. operated social media engines, such as X and YouTube. Leaving these labels to take matters into their own hands not only poses a problem for the South Korean justice system in accessing identifying information about these assailants, but also for the idols themselves.
Though it can be said that misinformation is just about reputation, how can an idol monetize their own identity when it gets tarnished without punishment? HYBE, on behalf of the members of Le Sserafim who were victims of false, defamatory, and harassing short-form videos posted to YouTube, filed an Ex Parte application for an order under 28 U.S.C. § 1782, authorizing discovery for use in a criminal proceeding in the Republic of Korea. The statements in question led to an inflammatory debate about the group, with many calling into question their ability to perform (an integral part of being an idol), creating risk to their valuation as a group. As noted above, in South Korea, defamation matters are under both criminal prosecution and civil suits. On June 28, 2024, Justice Chhabria of the United States District Court Northern District of California denied this motion for discovery despite applicants meeting the prerequisites under 28 U.S.C. § 1782. Justice Chhabria cites two previous proceedings in which victims of these crimes attempted discovery through the same channel, and as a matter of public policy, decided that foreign private citizens should not use an American court to access the personal information of a U.S. citizen for a foreign court proceeding. Despite the design of 28 U.S.C. § 1782 and its purpose of assisting in foreign proceedings, this decision sets a dangerous basis for K-labels and their ability to effectively quash attempts to harm their idols’ image.
Forced to take matters into their own hands in trying to gather as much information as possible for the justice system to work, K-pop labels have launched online systems for fans to report any misuse and abuse of their idols’ images online. This year alone, all four major labels in South Korea have created similar systems to specifically address AI deepfake images. Not only do AI deep fakes pose a serious moral issue, but they stand to cause significant damage to these idols, who bring in and support a significant portion of the nation’s GDP.
Not only do these idols and their agencies retain a right of publicity of their identity, but they should retain the right to pursue through all possible legal avenues available to them the proper means of holding these assailants accountable. While Justice Chhabria’s decision only explicitly dealt with a defamation proceeding in the Republic of Korea, it represents just a minute sliver of the enormous complications of protecting the identity of international stars. While this decision left many fansdisheartened, many are hopeful that these agencies will be able to step in and protect the idols for their own well-being.