Diary Of A Kpop Fan

What did your black dog feel like? How did it look? Could you see its clouded eyes, wherever you looked?

You had a black dog, who chewed into your soul. When you ran away it chased you, and continued to nibble. How much did it devour? That you were so empty inside. When you laughed and comforted others, what did it feel like?

When you have a black dog, they say you feel nothing. But now we see your pain, when your soul was slowly shattering. Did it eventually stop? Maybe when it ate you hollow? Was your gentle soul replaced, by that black dog that was inside you?

But you were still in there. Your soul still shone through. It was struggling to escape, the thick black fur that suffocate. The music that saved you, the outlet of your soul. Comforted, healed, confided, but it also fed the foe.

You had a black dog, where did it come from? At the end were you resigned, were you confused? Was it a black dog or was it just you?

And were you that scared because you lost yourself? The same face, but a stranger, without any answers.   And were you that lonely because you couldn’t hold on? The pieces of you, some lost, some scattered.

Now there is no black dog, because you sent it to hell. You were brave, you worked hard, you did well.

And now…

From now…

Forever now…

1.       Terms of the settlement

In a settlement the terms are usually private and confidential which is why both sides cannot reveal much. But from a gist of both parties’ statements as well as the media reports, it seems that kris’ and luhan’s contracts with SM still stands, until 2022. I have been seeing some people say that they only share their profits with SM when they promote in korea/japan. I don’t think that is the case, which SM would never have settled for anyway.

From what I see in the reports, most likely Krishan are excluded from the korea/japan market (essentially an injunction), this can also be seen from kris’ and luhan’s agencies’ statements. On top of that, for the revenue that is earned by them in any other countries, they will share a part of that with SM (this is from SM’s statement). The exact percentage of the split is unknown.

I think much confusion comes from the use of the word “jurisdiction”, while it does refer to a court’s jurisdiction over the matter, I believe in SM’s statement it refers to a particular country/geographical region that is under a particular system of law (for instance the Korea jurisdiction would refer to any geographical area that is subjected to the purview of the Korean courts).

2.       Why settlement?

Some people seem to think that this is not a happy ending, and more interestingly some fans even question why the court did not dare to make a decision. The simple answer is… a settlement makes the world a happier place.

In fact, if I’m not wrong the court had ordered that parties go for mediation which usually can result in settlements of this sort. Procedure wise, I have no idea what their version is like. But commonly in a court-facilitated mediation there is a judge-mediator who give parties his opinion about how strong their case is (i.e. how likely they are to win the case). Of course this is all private and confidential and does not affect the future court proceedings should the mediation process fail to result in a settlement.

On this basis, the parties will have a clearer view of what their chances are and are more likely to come to a compromise.

the benefits of a settlement include that it is final, it is more amicable and it is enforceable like any other contract.

Also, in litigation, the judgment rests on the decision of a third party (the judge) who may not have the entire knowledge of all the background and nuances of the case. A settlement is much better in this sense because the decision is essentially taken by the parties who had experienced the entire conflict and understands it best.

3.       Can Krishan appeal?

No. This is a settlement, it’s not a court order so no appeal. This is why a settlement is happier, because both parties accepted it, it is not imposed upon them unlike a judgment and of course naturally there is no appeal for this.

4.       Will Krishan return to EXO or will SM continue to manage them?

No. There is no practicality in that now that the relationship is broken. This goes to the point of why this is a happy ending again because SM wanted compensation while the two of them wanted to go solo. In essence, the settlement has achieved that, where they can promote and take on work in their own capacity but then a portion of their profits will be given to SM, so each of them gets what they want.

5.       Is this a win-win situation?

In my opinion yes. For one, the longer the law suit drags the more damage it does to both sides, reputation-wise and finance-wise.

For luhan and Kris, this is a win because they get to leave SM, with the relatively small price of paying some money. This, I say on the basis that, as many people have pointed out, a contract is a contract. Was it an unfair contract? I would tend to say no. After the JYJ and Hangeng scandals, SM would take extra caution to modify their contracts with their artists. Secondly, after those scandals there is implicit knowledge of the potential treatment that SM artists may be subjected to (whether these are true or not is another matter but let’s for now assume that SM does treat their artist this way) so it is harder for subsequent artists to claim that this was unfair because they signed it with knowledge that it will be this way. This is in a way akin to “informed consent”.

Another argument very commonly cited is that SM had treated them so unfairly that it amounts to breach of contract sufficient for them to require a nullification (any maybe some compensation). There are a lot of underlying problems with this view. First and foremost the word “nullification” should not be loosely used in this situation. There is a fundamental different: when terms of the contract are unfair, that can lead to nullification of a contract; when terms are fair but one party treats the other in such an unfair manner such as to breach the terms, this can only lead to termination of the contract. You can think of it as a two ppl getting married, in the first scenario they are claiming that the marriage never happened, and in the second scenario they are merely claiming a divorce.

Unfortunately, SM is likely to have the higher bargaining power when the contract was signed, this means that the terms are likely to favour SM, so in order for SM to breach a contract which presumably they drafted, the chances are pretty low. In other words, SM would have covered their bases to prevent any of their actions from causing a breach of contract sufficient to terminate the contract. [note here that there are different levels of breaches, there are the ones which can be remedied by compensation and then there are the ones which are more serious that can lead to immediate termination].

Another problem with this argument is that krishan left to pursue solo activities without SM’s consent. That is a breach of contract undoubtedly. So even if we assumed that indeed SM had breached their contract first due to unfair treatment, a breach does not remedy a breach unfortunately. Leaving is not the condemning part here, it is the action of pursuing solo activities without SM’s consent that is more important. So krishan can hardly escape some form of contributory liability even in this case.

Given so, I would say it’s a “win” for krishan to have settled this matter this quickly, at least they are allowed to pursue in their predominant markets now.

As for SM, I think there is a larger consensus that they have “won”. This arises from the fact that parties have agreed that the contracts between krishan and SM will stand until 2022, and SM gets a share of their profits. For SM, given the nature of the china judicial system, it is definitely more beneficial for them to come to a private settlement than to navigate the mystical waters of the Chinese courts. Nonetheless what SM got here is predominantly an “account of profits” remedy, there is little “damages” provided for the loss that was suffered. So, in this regard they have lost some, even though they won some.

Apart from the micro view of winning from the parties’ point of view, what is more important is the “win” for the system. The kpop production is an ecosystem of its own. The system has its rules and yet at the same time is subjected to regulations by the law.

One of the most important impact of this settlement is the deterrent effect that it holds. It will deter aspiring idol wannabes from signing a contract unless they are fully confident they understand what it holds. It will also deter current idols from disregarding their legal promises at their whims and fancies. At the same time let’s not forget that it will definitely deter the entertainment companies from allowing this repeat itself again and again.

The entertainment companies and the idols are a symbiotic relationship; they require each other to survive. The system’s balance needs to be maintained so that the future luhans and future Kris-es can be allowed to continue pursuing their dreams.

People tend to disregard SM’s side of the story and choose to err on the artists’ side because of the exposure value. We always tend to favour the people we know and we can put a face to. Nothing is wrong with that but let’s not forget that artists = a job. In almost any other employment out there, the corporation tends to have a higher bargaining power, this is the reality of the society and this is an issue that should be solved on a societal level and not only for the idols.