How much can MBK fuck T-ara in the ass? A short guide to contracts, trademark and performance rights law

Like me, you’ve probably noticed that T-ara has now officially left MBK Entertainment.  However, you may also be wondering – how much can MBK Entertainment fuck T-ara in the ass at this point?  This post has the answers!

So, what’s actually going on with T-ara and MBK?

All the six T-ara members were under different contracts with different expiry times.  Soyeon and Boram’s contracts ran out earlier in 2017, so they left the group at that time.  The other members had to wait until the end of 2017 for their contracts to run out.  This has now happened, so all six members are now no longer under contract to MBK Entertainment.  T-ara are now looking at options for their future.

Why did the contracts expire at different times?

It’s common practice with the larger k-pop labels for them to negotiate terms with each performer individually rather than as a group.  A cynic would say that this is “divide and conquer” tactics to make negotiations easier, and while there is definitely some truth to this, remember that from the point of view of a k-pop agency, the idol is the product, not the group itself, so it makes more sense to contract the individual.  Think of any Korean pop group and their music as the “delivery system” for the real products – the idols themselves.

What would the contract between T-ara and MBK actually have been like?

When performers first sign to an agency, their contracts are always heavily in favour of the company, because the performer as an unknown name has no bargaining power, the company will just hand them a crappy default deal and say “sign this or we’ll use someone else”.  Even exceptional talent isn’t a bargaining tool as idols go through a training process anyway, and a company will always pick a less talented person over a more talented person who wants special treatment, if both are equally unknown.  From the company’s point of view, they don’t want to heavily invest in a nugu artist if they’re not going to get anywhere.  However if during the term of that first contract the idol changes from an unknown name to a well-known name, then they gain market value which is a currency chip they can use in future negotiations.  When a contract renewal comes up, the idol can say “if you want me to sign on for extra time, you need to make the terms more favourable”.  T-ara have renewed contracts with MBK in the past, which means that for the first few years of their contract it would have been rubbish like almost all idol contracts, but over the last couple years where they extended terms, they would have likely gotten a better deal.

Why wouldn’t the T-ara girls just renew their contracts a second time and keep going?

All the members of T-ara are getting older, with their ages at the time of writing ranging from 24 (Jiyeon) to 31 (Qri, Boram).  It’s natural that they’d like to keep their options open rather than locking themselves into anything specific.  Idol contracts may also forbid certain activities that the members may understandably wish to engage in (such as sperm absorbtion, a common hobby especially of women approaching menopausal age due to the popular side effect of baby creation).  With the girls now being bigger global celebrities than ever, they may also not see a need for an outside agency that isn’t under their direct control.

Can MBK stop T-ara from using the T-ara name?

Yes, we’ve seen this type of situation before with Cube Entertainment and Beast, who were forced to change their name to “Highlight” to keep the group running.  MBK have recently moved to attempt to trademark the T-ara name, this indicates that they would prefer T-ara to not use their name.

Why didn’t MBK trademark the T-ara name ages ago?  Or why didn’t T-ara, for that matter?

Believe it or not, it’s not common practice for either groups or agencies to trademark their own name.  Trademarks are much more easily applied to logos than names, a trademark for just a name alone is actually a difficult thing to acquire, as the name needs to meet certain standards of uniqueness just by itself.  This law is highly variable and changes depending on country.  It’s also true that even without formal recognition of a trademark, a group name that is well-known does still already have some legal protections (for instance, whether the band name “Metallica” is a registered trademark or not, the Metallica members can still take action against you if you start a band tomorrow and call it “Metallica”), so for this reason most musicians find trademarking their group name to be an unnecessary step.

Now that MBK have applied for a trademark over the name “T-ara”, can the T-ara girls do a “counter-application” or challenge the process?

T-ara cannot file a separate application, as MBK’s application will be considered over T-ara’s application, due to MBK applying for the trademark first (see Trademark Act, Article 8 – First-To-File Rule).  However T-ara could file an objection to MBK’s application (see Trademark Act, Article 25 – Objection To Trademark Registration) and in fact any other person would also be entitled to do this.  The person objecting has two months from the date of MBK’s claim to file their objection, which must also contain supporting evidence.

What is the likelihood of an objection to MBK’s claim being successful?

For an objection to stand and the trademark claim by MBK to be rejected, it would need to meet the conditions set out in Article 23 of the Trademark Act (Decision to Reject Trademark Registration and Notification of Grounds for Rejection).  The most likely clauses that could enable this being Article 23(1)-4 (does not meet the criteria for definition of a trademark – which would actually prevent both MBK and T-ara from trademarking “T-ara”), and Article 23(1)-8 (would prevent someone currently using the mark from conducting business without justifiable grounds – since MBK is the one “conducting business”, it would need to be argued that it is in fact T-ara “conducting business”, not MBK – a difficult proposition).  The objector would need to convince the Korean Intellectual Property Office of the validity of this claim, and MBK would also be given a copy of the claim to examine and weigh in on (see Trademark Act, Article 27 (1)).

Could T-ara change their name just a little bit?  Maybe “Tiara”?

It would need to be seen to not violate the trademark.  A change from “T-ara” to “Tiara” probably wouldn’t work as all Hangul is strictly phonetic, so the spelling in Hangul is still 티아라 in either case, and it’s the Korean court that needs to be convinced of any difference, so “it’s spelled differently in another language” probably won’t cut it.  Once a trademark is established, soundalikes/lookalikes generally do fall under the trademark’s jurisdiction, or at the very least are consistently legally challenged.  T-ara would be better off with a completely unrelated name.  Kpopalypse suggests “shubidubi yayaya”!

Can MBK prevent T-ara from performing their own songs?

This depends on who owns the rights to the songs.  T-ara under a new name would be performing old material essentially as a “cover artist” even though they were on the original tracks, but then given that T-ara did not write the songs in their original form anyway (or even sing on the recordings half the time ahem), they were “cover artists” even in their original incarnation.  Legally, a composer is entitled to stop cover versions of their songs from being performed, however in practice this very rarely happens except with the very biggest arch-cunts of music because the composer will receive royalties for each performance and most of them are happy to just let the money roll in.  If the original composer still retains song rights, then there will almost certainly be no issue here.  On the other hand, if the composer had signed all rights over to MBK, then it would be MBK who could then make this call and have potential veto power, but once again if they are receiving the royalties that the composer would usually get (which would have been agreed to when the song was commissioned or bought) then there’s very little motivation for them to exercise this legal right.  This situation may vary on a song-by-song basis, MBK may have the right to stop cover versions of certain T-ara songs that they own, while other songs created under different agreements may not be within their control.  The situation may be complicated further by any deals that MBK has made with overseas agencies (in China and Japan) to release T-ara content, these may come under their own agreements which may or may not be under their influence.  It may even be possible that T-ara are allowed to perform certain songs in certain regions of the world but not others.

Can MBK prevent T-ara from performing any new material under a different name?

No.  In some contracts in other industries there are agreements that state people cannot produce work outside the agency for a certain time after a contract expires (this sometimes happens with some of the dodgier modelling contracts out there, for example), however this type of agreement is not standard in the music industry.

What other actions can I expect from MBK now that T-ara have left?

Unlike SM, YG and JYP, who are all “independent” labels in terms of business structure, MBK in their original incarnation more closely fit the profile of a western “major” label, in the sense that they were just one arm of a large, overarching organisation (CJ Group) that controls many aspects of Korean life.  Since 2014 this is no longer the case and MBK Entertainment are their own entity, MBK Co. which means that they are now on the same playing field as the “big three”.  Like those labels, MBK have close connections with other aspects of the Korean Entertainment industry such as TV stations and media outlets, and while they do not necessarily have direct control in all cases, they certainly would wield influence over media representation.  MBK also have a history of portraying and talking about ex-artists negatively via these outlets, so read anything from mainstream Korean media outlets (or useless “translation sites”) about T-ara’s current or ex members with a grain of salt… or maybe a large bucket.  A false story about Hyomin has already been leaked to the media, and there will probably be more soon, so be prepared to not believe anything that doesn’t come from the T-ara members themselves, via their own channels as opposed to through Korean media.

Just because you “like” a certain news site or retweeter doesn’t mean that their source isn’t corrupt and they’re not just regurgitating utter bullshit, and the more prompt/efficient these reports are, the more likely that what’s being reported is a lie (as quickness and being the “first!!1!” usually means that any time-consuming fact-checking just hasn’t happened).  T-ara fans should be used to questioning any media reports anyway, given that the vast majority of everything reported about them from mid-2012 onward has been proven completely false.

Will T-ara continue, or will the members just give it up?

It’s very likely that T-ara will continue, and it’s also very likely that cutting MBK loose is the only way for it to have ever continued under terms that the girls would find agreeable.  The contract ending and the girls not choosing to renew should be looked at as a way for the T-ara girls to increase their options for keeping the group and their partnership with each other viable.  We know this because the girls have said it themselves.

I would strongly expect more T-ara content of some kind in 2018, after the girls take a break for holidays in the Southern Hemisphere where it’s nice and warm right now.  Hey T-ara members, shoot me an email if you need a place to crash for a night, I have a spare couch.

18 thoughts on “How much can MBK fuck T-ara in the ass? A short guide to contracts, trademark and performance rights law

  1. It’s hard for me to believe that the “we’re only leaving the company, not T-ara” comments are anything more than just empty promises to comfort fans/prevent fans from revolting. I’m hopeful, though. I’d love to see all six back together

    • I wrote it in about an hour, it wasn’t prepared in advance. However if it seems like I already know a lot of this shit, that’s because I do. Some of it is building from other posts I’ve already made (which are linked) and it’s familiar professional area for me anyway.

  2. It’s true that T-ara fans have learned to question any headline referring to them and conversely any kpop headline. Yet another contribution to the betterment of the world by the T-ara girls.

  3. If any journalist in the world is going to be honest and realistic about this, it’s you. Here’s to a 2018 (or 2019) T-ara!

    And Chocolat too 🙂

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