Oppa Spin-Off Style: Trading off someone else’s goodwill in a viral video

In early October, we posted about the creators of viral K-Pop video ‘Gangnam Style’ facing a trade mark fight in the Korean Intellectual Property Office (KIPO). Since then, we’ve noticed a number of interesting ‘Gangnam Style’ spin-offs popping up all over Australia. While in PSY’s own words imitation is the sincerest form of flattery, it’s interesting to consider whether some recent examples are a gallop too far.

The clip now has nearly 1 billion views and 6 million “likes” on YouTube, making it the most watched and most liked YouTube video of all time. It’s joined the ranks of songs featured on hit TV show Glee, and it’s been life-changing for many, including

  • this baby, who enjoyed five minutes of fame after refusing to eat unless ‘Gangnam Style’ was playing; and
  • this Perth household, which set up 41,000 bulbs, 2,000 light channels and 2kms of cable into Christmas lights set to the Gangnam Style tune (now shut down due to overwhelming number of visitors – sorry!).

When it comes to your intellectual property, it is up to you how you handle it. Perhaps you develop a strict no-compromise approach and lock down your intellectual property rights. Or perhaps you play loose and fancy free, choosing to protect some elements but letting other elements fly, gaining commercial benefit from your lack of protection. The Gangnam Style phenomenon has been a fascinating example of the latter.

Back in August, when the clip was just starting to get traction online, PSY’s management agency YG Entertainment (YG) filed a trade mark registration with KIPO for the words ‘Gangnam Style’ with a caricatured image of PSY, in classes 9, 25 and 28 for a variety of goods including electronic media containing music, glasses, shirts, toys and entertainment equipment. There were a number of reports of YG attempting to protect its rights by preventing third parties from selling t-shirts and other merchandise featuring the words ‘Gangnam Style’.

However, in relation to copyright, The Guardian reported that PSY had waived copyright in the video, which explained the huge number of parodies doing the YouTube rounds without being pulled down. YouTube’s content recognition software detects videos that use copyrighted content and artists can either elect to have the video removed or allow it to stay online and share ad revenue with YouTube. We imagine that if the YouTube ad revenue on PSY’s own clip is reported to be around US$870,000, the ad revenue on at least 33,000 parody videos won’t be small. And 33,000 parodies is a statistic sourced from September, when the original had only 300 million views.

Just a few weeks ago, TMZ reported that when PSY’s team heard about a Los Angeles restaurant which rebranded under the name ‘Gangnam Style’, they briefly considered legal action but have now said they don’t plan to pursue anything. Sources close to PSY told TMZ: “where he comes from, imitation is a form of honour.”

Recently, and thanks to our Twitter feed, we’ve seen these examples pop up in Australia:

  • a “Gangnam Style” Korean BBQ in Brisbane (see photo thanks to @brocklesnitch here); and
  • a Gangnam Style karaoke joint in Liverpool St, Sydney (see photo thanks to @seamus here).

Interestingly, both examples do not only use the words “Gangnam Style”, but also the caricatured image of PSY doing the horse-riding dance made famous in the video clip. While based on TMZ’s report that PSY “doesn’t give a crap” about the LA restaurant, perhaps his view would be different in relation to these examples as:

  • the companies are also using the caricatured image (in which the creator would own copyright); and
  • karaoke is perhaps far closer to something that PSY might be interested in capitalising on himself in future than a BBQ restaurant.

Under Australian law, if PSY felt aggrieved, he could consider an action under the common law tort of passing off, where he would need to establish that:

  • he has a reputation in Australia, either well-known himself (in the style of the character merchandising cases), or in the caricatured image of himself with the words ‘Gangnam’ or ‘Gangnam Style’;
  • that there has been a misrepresentation, which leads or is likely to lead the public to believe that the goods or services are associated with him; and
  • actual or threatened damage to his reputation or goodwill.

While the first element is likely to be very easily made out given the virality of the video, PSY may struggle to prove that the public believes or is likely to believe that Australian-based BBQ restaurants, restaurant services, or karaoke bars are associated with him, and that there is actual or threatened damage to his reputation or goodwill. Alternatively, he could consider action under s 18 or 29 of the Australian Consumer Law for misleading or deceptive

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conduct or false or misleading representations.

Of course, this is all speculation. PSY – if you’re reading this and want to chat, feel free to give us a call. We can talk fixed fee, payment in-kind (in the form of invisible horse-riding dance lessons and some tips on how to go super viral). Anyone else – got any other examples of Gangnam Style spin-offs in your neighbourhood? Tweet us @ipwhiteboard.

PS. Interestingly, on 29 November, Maum Group Pty Ltd in NSW (who we presume are not associated with PSY or YG in any way) applied to register a composite mark on the Australian trade marks register (trade mark no. 1528811) in class 43 for restaurant-related services for the word Gangnam together with a silhouette of a man wearing a chef’s hat, sunglasses and a bowtie. When seen together with the word Gangnam, it seems at least arguable that this silhouette is a reference to PSY. While YG Entertainment have applied for one trade mark on the Australian register (for the word 2NE1, trade mark no. 1440422), there are no other marks on the register using the word Gangnam. Stay tuned!