Julie Min
K-dramas, K-beauty, K-food . . . and K-Pop! Korean pop culture is undoubtedly one of today’s trendiest sub-cultures, with a huge international fan base that comprises millions of avid followers.
An article attributed K-pop’s global phenomenon to its “distinctive blend of addictive melodies, slick choreography and production values, and an endless parade of attractive South Korean performers who spend years in grueling studio systems learning to sing and dance in synchronized perfection.”[1] Indeed, K-pop is truly one of the world’s most visual musical forms, with its strong emphasis on beauty, choreography, and visual performances. Due to this, many K-pop fans call it a transcendental experience.
Marketing on this transcendentalism, one artist group has taken “escaping reality” a step further. Under the lead of its music label S&M Entertainment, the girl band aespa debuted as the first metaverse (also called 광야, pronounced gwangya) group in the K-pop universe.[2] Each of the four real-life members—Karina, Ningning, Giselle, and Winter—also exist as carefully crafted digital “ae-”avatars that live and operate in a metaverse.[3] Not only does aespa introduce the concept of this metaverse in their music videos and lyrics, but the girl band also performs together with their digital avatars on stage in real-time.[4] In March 2023, aespa even presented their world premiere at SXSW through a virtual reality concert that took place in the metaverse.[5]
This latest move in the entertainment industry is thrilling. But what about its legal implications? And in particular, who owns the creations and artistic endeavors that evolve through this metaverse? Simply put, the creator—in this case S&M Entertainment—does. To understand the metaverse in detail, one should first know that there are several categories of metaverse; the two most distinct are the open and closed metaverses. In an open metaverse, users can freely interact with and even create new features. In contrast, users cannot create any additional element in a closed metaverse, like this one. Correspondingly, the company owner of the metaverse has full ownership over the closed metaverse and its constituting elements.[6]
While the closed metaverse creates far less legal complications than its open counterpart, the major underlying issue still persists: the metaverse is a decentralized platform, meaning that there is no central authority controlling the virtual world. As of now, the same general laws that apply to the internet also apply to the metaverse.[7] Among these laws are copyright, IP, and contract law. So just as it has so far been the case with NFTs, the same general rights map onto aespa’s avatars and their related work. It may get more complicated, however, when a case like this becomes a cross-border matter.
Copyright law works in a way such that each country has a distinct set of regulations that are only applicable in their respective states.[8] “Protection against unauthorized use in a particular country depends on the national laws of that country;” no “international copyright” will automatically protect a creator’s work throughout the world[9]. There are, however, international copyright treaties and conventions that help with cross-border disputes regarding copyright. To name a few are the Berne Convention for the Protection of Literary and Artistic Works, the WIPO Copyright Treaty and the Universal Copyright Convention administered by the United Nations Educational, Scientific, and Cultural Organization.[10]
In the way that the same general internet laws also apply to the metaverse, the same international treaties that govern real-life cross border disputes may help with cross border disputes in the metaverse. This is especially true given the global nature of the music and entertainment industry today. An article published by the World Intellectual Property Organization Magazine recommends that “we must analyze NFTs, the emergent metaverse and any other new digital phenomena against existing regulations, which have been enacted after thorough debate by multiple countries and cultures.”[11] There has been emerging discussion around resolution by decentralized arbitration courts that are free from state interference.[12] Where no consensus or overreaching law has yet been found for the metaverse, policymakers grapple with creating and managing a platform that holds infinite potential which will, of course, be accompanied by boundless legal complications.
[1] Aja Romano, How K-Pop Became a Global Phenomenon, Vox (Feb. 26, 2018), https://www.vox.com/culture/2018/2/16/16915672/what-is-kpop-history-explained#:~:text=K%2Dpop%20has%20become%20a,and%20dance%20in%20synchronized%20perfection. [https://perma.cc/P98R-UGM6] [https://web.archive.org/save/https://www.vox.com/culture/2018/2/16/16915672/what-is-kpop-history-explained#:~:text=K%2Dpop%20has%20become%20a,and%20dance%20in%20synchronized%20perfection.].
[2] Raisa Bruner, How K-Pop Group aespa Is Making the Metaverse Their Home, Time (May 11, 2022), https://time.com/6174945/aespa-2/ [https://perma.cc/HK24-9RRZ] [https://web.archive.org/save/https://time.com/6174945/aespa-2/].
[3] Dong Sun-hwa, 'Metaverse group' aespa Takes Stage with Digital Avatars, Electrifies 5,000 Fans, Korea Times (Mar. 1, 2023), https://www.koreatimes.co.kr/www/art/2023/03/398_346212.html [https://perma.cc/3C7T-PFQ8] [https://web.archive.org/save/https://www.koreatimes.co.kr/www/art/2023/03/398_346212.html].
[4] Id.
[5] Jeff Benjamin, See the First Behind-the-Scenes Look at Aespa’s VR Concert Coming to SXSW 2023: Exclusive, Billboard (Mar. 10, 2023), https://www.billboard.com/music/pop/aespa-vr-concert-sxsw-2023-behind-the-scenes-look-1235283132/ [https://perma.cc/U7QZ-MDUY] [https://web.archive.org/save/https://www.billboard.com/music/pop/aespa-vr-concert-sxsw-2023-behind-the-scenes-look-1235283132/].
[6] European Innovation Council and SMEs Executive Agency, Intellectual Property in the Metaverse. Episode IV: Copyright, European Comm’n (June 30, 2022), https://intellectual-property-helpdesk.ec.europa.eu/news-events/news/intellectual-property-metaverse-episode-iv-copyright-2022-06-30_en [https://perma.cc/8BE6-YLFN] [https://web.archive.org/save/https://intellectual-property-helpdesk.ec.europa.eu/news-events/news/intellectual-property-metaverse-episode-iv-copyright-2022-06-30_en].
[7] Olga V. Mack, What Laws Apply In Metaverse?, Above the Law (Apr. 18, 2022), https://abovethelaw.com/2022/04/what-laws-apply-in-metaverse/#:~:text=Metaverse%20is%20also%20a%20decentralized,assets%20and%20experiences%20in%20Metaverse. [https://perma.cc/9VYZ-YNPT] [https://web.archive.org/save/https://abovethelaw.com/2022/04/what-laws-apply-in-metaverse/#:~:text=Metaverse%20is%20also%20a%20decentralized,assets%20and%20experiences%20in%20Metaverse.].
[8] Susy Frankel, The International Copyright Problem and Durable Solutions, 18 Vand. J. Ent & Tech. L. 39, 65 (2015).
[9] U.S. Copyright Office, International Copyright Relations of the United States: Circular 38A, U.S. Copyright Office (Dec. 2022), https://www.copyright.gov/circs/circ38a.pdf [https://perma.cc/CH3B-TW2F] [https://web.archive.org/save/https://www.copyright.gov/circs/circ38a.pdf]
[10] Id.
[11] Andy Ramos, The Metaverse, NFTs and IP Rights: To Regulate or Not To Regulate?, WIPO (June 2022), https://www.wipo.int/wipo_magazine/en/2022/02/article_0002.html [https://perma.cc/XY42-RHWF] [https://web.archive.org/save/https://www.wipo.int/wipo_magazine/en/2022/02/article_0002.html].
[12] Sneha Vijayan, Autonomous Arbitration in the Era of the Metaverse, Kluwer (Mar. 11, 2022), https://arbitrationblog.kluwerarbitration.com/2022/03/11/autonomous-arbitration-in-the-era-of-the-metaverse/ [https://perma.cc/Z8N7-EYEG] [https://web.archive.org/save/https://arbitrationblog.kluwerarbitration.com/2022/03/11/autonomous-arbitration-in-the-era-of-the-metaverse/].