Note: Toshiro Ono is a freelance nonfiction writer who writes mostly about the mafia and crime. Below is a translation of his blog entry that details actions taken by both sides of the CJeS and Avex lawsuit, as well as his thoughts on the reasoning behind those actions.
[JP Trial Translation] Avex and C-JeS court records
Petition made by JYJ Japanese fans has been submitted to the court through a lawyer. (JYJ3 Note: read more here: 1, 2)
The Petition
「March 13, 2012
This petition is for JYJ to do activities freely in Japan.
We are fans of JYJ, a male vocal group from Korea.
In Sept 2009, Avex management, the defendant in this case, declared the unilateral hiatus of JYJ in Japan, taking away from us the opportunity to hear their music.
1 1/2 years has passed since this sudden hiatus, despite the fervent hopes of JYJ and us fans to resume their activities freely in Japan, that day has not yet come.
Not only that, the actions of Avex have deeply hurt the hearts of the artists and the fans repeatedly.
In order to protest against such tactics of Avex, we made a signature petition which aim to let JYJ have activities freely in Japan. As a result, 19,813 signatures were collected as shown in the attachment.
We support the activities of the C-JeS company.
We humbly submit this petition to the court.
This signature campaign was initiated by us. We ask for your support. 」
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The following are the most recent documents prepared by both parties.
A. C-JeS briefs about details of charges such as fines, etc
B. Avex briefs the following:
Main contents of the Avex brief last May 25
(2) “The effect of termination of the exclusive contract case”
A. Introduction
Avex as has been repeatedly claim that so far, cancellation of the contract is invalid because of the exclusivity issue, C-JeS claim assumes that the release is valid is unacceptable, although there is no need for rebuttal originally, below, as a precaution, to refute the assumption is valid is released.
I. C-JeS claim:
C-JeS, due to the cancellation of the exclusive contract case, on the arrangements stipulated in the exclusive contract, this matter shall cease to be effective toward the future, termination of the exclusive contract after the date of issue, Avex has recorded JYJ’s demonstration (hereinafter called Master Case), and argues that exercise of the rights can not be naturally transferred based on Article 7 of the exclusive contract.
II. Avex objections:
a) The wording of the exclusive contract issue:
However, as mentioned above (page 4), in paragraph 1 of Article 7 in the exclusive contract, provisions that the right on every activity of JYJ made as artists during the validity period of the exclusive contract (according to the copyright of any copyrighted work, performer’s rights, etc), are defined “without time limitation” and will be transferred exclusively to Avex.
So, if it expires or is terminated by an exclusive contract, or was terminated by a release, without question the cause of its termination, also “in the termination of this agreement”, Avex, in any region, range, and without period limitation, with free discretion, can exercise the rights under Article 7 of the exclusive contract on the activities of JYJ during the validity period, or transferable license to a third party (referred to in the proviso of Article 8 of the exclusive contract issue) or, in addition, shall come up with a decision on the discussion of this matter are specified (proviso to paragraph 2 of Article 6 of the exclusive contract issue).
On the other hand, Avex, with the use of master case, for C-JeS, the duration of copyright or neighboring rights of the case to present this matter, and has been paying the artists royalties as consideration for JYJ’s activities (no.1, paragraph 1, article 10 of exclusive contract issue), for the same item, are defined without question the cause of the end of the contract “after the exclusive contract case” shall remain in effect (Article 24)
If the exclusive contract from the way of provisions of the matter as described above, each of the above terms, if you exit not only the lapse of a lifetime exclusive contract case, naturally be applied even if you end by default release is obvious.
b) Industry practice records:
In addition, in the recording industry, such as record companies, in making a record (song), fees (such as studio use fee, renumeration of studio musicians, editing room usage fee, engineers fee, arrangement fees, planning of record sales and digital distribution), are included in the invested capital that has been originally planned. Therefore, although the song was already made, funds should be continuously available, regardless of period.
To recover the capital that was invested in a production, an exclusive contract should be made. This is the current practice of most companies in the recording industry.
C-JeS also, after the end of this exclusive contract, merely means that you can’t make the use or production of records and issue a new record, does not affect any case.
And, even if construed as above, avex, for C-JeS, neighboring rights issue during the validity period, has been paying the artists royalties as the consideration for such activities that JYJ participated in (no 1, paragraph 1, article 10 of the exclusive contract issue), because they can use to assure the interests of certain records, there is no disadvantage to C-JeS.
c) Others:
If from that described above, even if the exclusivity of a valid contract is cancelled temporarily, the use of any songs was produced during the contract’s validity period, does not affect the exclusive contract, the claim of C-JeS is unacceptable.
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C-JeS written application for evidence
May 28
1) Display of testimony of the witness
Sejong Law Firm (includes the address of the firm)
2) Facts
Witness is a lawyer involved in the negotiations and conclusion of the exclusive contract for JYJ’s Japan activities that C-JeS entertainment (called C-JeS) and Avex management (referred to as Avex below) had agreed.
By examination of witness, 1) Avex has signed the exclusive contract with the knowledge that there is a dispute between SM entertainment and JYJ; 2)Avex violated the exclusive contract, without informing the management of JYJ, when it has a press release on Sept 16, 2010 announcing the hiatus of JYJ, which proves that Avex concluded the contract directly with JYJ.
3) Examination
Part 1
a) Circumstances of this matter until the conclusion of an exclusive contract with Avex
b) Article 15 of the exclusive contract case
Part 2
a) Negotiation history from June 2010 until September 16, 2010
b) The reason why Avex suspended the activities of JYJ on its press release on Sept 16, 2010Part 3
Course of the lawsuit of JYJ with SM entertainment
Course of the lawsuit of JYJ with SM entertainment
Part 4
Other documents related to this case
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Other documents related to this case
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Future course:
Baek Chanju (C-JeS) and Anami Masahiro (Avex) will submit a written statement on June 27.
Baek Chanju (C-JeS) and Anami Masahiro (Avex) will submit a written statement on June 27.
Translator Note: Basically what Avex was saying is that they should have a portion of what JYJ earned during the exclusive contract validity period (which will end next year) even if they lose this case. As for C-JeS, that contract was terminated as soon as Avex announced the hiatus of JYJ because 1) they did not inform C-JeS, 2) the reason they gave was bull (the bs that avex didn’t know c-jes has ties to the mafia).
Translated by: @rubypurple_fan