Work Bearing The Characteristics Of Its Author And The Signs of Work

The Law on Intellectual and Artistic Works ("LIAW"), which has been amended many times since its entry into force in 1952, still causes uncertainty and confusion in practice. The recent decision of the Court of Cassation^[1] has been a very guiding and clarifying decision in terms of examining the signs of the work, which are controversial in practice, and the amendments made to LIAW, especially with regard to cinematographic works, and the issue of the works bearing the characteristics of the owner.

The lawsuit subject to the decision was filed by the screenwriter of the 1977 film "Selvi Boylum, Al Yazmalım", where the plaintiff filed the court action based on violation of his rights arising from the copyright on the screenplay and unfair competition due to the use of the slogan "Sevgi Emektir“ (“Love is Labor") in the screenplay of the film, which was inspired by the work named "Red Scarf" and created as an independent adaptation, in the commercial of the defendant without any permission or approval from the plaintiff. The defendant based his defense on the fact that the screenplay of the film "Selvi Boylum, Al Yazmalım" was not entirely original since it was inspired by Aytmatov's story "Selvi Boylum" and that all rights on the film belonged to the producer since the film was made before 1995, and that the rights to use the work were duly purchased from the persons holding the financial rights.

• The Court of First Instance ruled that since the movie subject to the lawsuit was made before 1995, the first version of Article 8 of the LIAW^[2] will be taken into consideration and accordingly, the producer who produced the movie will be deemed as the author, and the plaintiff will not have a financial right in the works in question, since the script and the movie were created before 12.06.1995. In addition, the Court considered that the screenplay was adapted from Aytmatov's novel and that the only part where the plaintiff could claim a right on the screenplay was the plaintiff's contribution to the screenplay in terms of characteristics. In this context, the Court decided to reject the plaintiff’s claims for damages on the grounds that the defendant obtained written permission from the producer company, which is the author, to use the images of the film in the commercial, and that the financial rights were transferred to the defendant in accordance with the law as per the document in the file relating to the transfer of the rights.
• The Regional Court of Appeal ruled in the same direction and stated that the first version of Article 8 of the LIAW should be taken into consideration in accordance with the explicit provision of Additional Article 2 of the LIAW^[3] and argued that the plaintiff cannot claim a right arising from the LIAW as a screenwriter in terms of cinematographic works. However, although the Court stated in the expert reports that the phrase "Love is Labor" was identified with the film as it was the motto of the film and should be protected as a work, the Court stated that this phrase became impressive with the other elements in the scene and the talents of the performing artists and concluded that the expression did not bear the characteristics of the plaintiff and is used by everyone in the society. The Court rejected the appeal of the plaintiff’s attorney since the plaintiff could not make a claim based on the rights arising from the script in accordance with Additional Article 2 of the LIAW and the plaintiff did not have a copyright on the expression "Love is Labor" separate from the script, thus the Regional Court of Appeal ruled that the decision of the Court of First Instance to dismiss the case was appropriate since it was also determined that the plaintiff had transferred all his financial rights.

Within the scope of its decision, the Court of Cassation clarified the discussions regarding the plaintiff's right ownership as a screenwriter and although it accepted that the producer is the author of the cinematographic works created before the amendment made by the Law dated 1995, it emphasized that this provision is not applicable in the concrete case, since the owners of the screenplay works are considered as authors both before and after the amendment. In this context, the reasoning of both the Local Court and the Regional Court of Appeal that the plaintiff cannot assert his rights arising from the screenplay he wrote as an adaptation was found incorrect.

Subsequently, the Supreme Court held that although there is no dispute that a contract was concluded between the film producer and the screenwriter for the production of the relevant film and the use of the screenplay, considering that the term of protection of a film shot in 1978 is 20 years from the date of publicity under the FSEK, this contract cannot cover the later period and that the screenwriter transferred his financial rights to the producers for a maximum of 20 years. Which rights were covered by the agreement signed in 1978 regarding the production of the movie and the use of the screenplay was discussed as well. Pursuant to Article 52 of LIAW^[4], the transfer of a financial right shall not be valid unless it is shown separately and in writing. Therefore, in the concrete case, it has been correctly determined that the signed agreement is valid only for the use of the screenplay in cinema screenings, and that the defendant has not obtained a written permission for the use of the screenplay in a commercial.

Finally, the Supreme Court analyzed the most controversial point in the dispute, which is the issue of originality, it has been stated that in order for the work to reflect the characteristics of the author, originality is not sought in each element or sentence of the work, it is sufficient that the impression created by the combination of these elements as a whole is original, and in terms of the concrete case, it has been accepted that the display of the phrase "Love is Labor" by presenting excerpts from the film evokes the elements of the scenario work as well as the cinematographic work.

As a result, it was not deemed correct by the Regional Court of Appeal to rescind the decision of the Local Court and to dismiss the case on different grounds, and the judgment was reversed in favor of the plaintiff since although there is no dispute that the plaintiff is the author of the work on the scenario, it is necessary to evaluate whether the phrase "Love is Labor" is a work or at least a "distinctive sign of the work" pursuant to Article 83/1^[5] of LIAW and whether the unauthorized quotation made accordingly requires compensation protection pursuant to Article 68 of LIAW based on the rules of infringement or unfair competition.

Within the scope of the Supreme Court's decision summarized above, first of all, the negative consequences for the plaintiff of the judgment established by the Local Court and the Regional Court of Appeal on the wrong grounds due to the amendments made in the LIAW in terms of cinematographic works are sought to be corrected. As stated in the decision, both the Local Court and the Regional Court of Appeal made a mistake in terms of right ownership by trying to apply the decisions of the Court of Cassation^[6], which were originally rendered with respect to performing artists who were not even protected as related right holders before the amendment dated 1995, to the case regarding the ownership of the work arising from a screenplay.

Moreover, the fact that the Supreme Court, taking into account the date of the contract between the parties, has stated that the transfer of financial rights is effective only for a validity period that can be foreseen at that date, has contributed to the case law that the indefinite transfer of financial rights is limited to the period of protection at the time of the transfer. In this context, it is recommended that the owners of cinematographic works who have not fully acquired the rights arising from the screenplay should re-contract with the screenplay owners in order to exercise their rights arising from cinematographic works within the scope of the extended periods.

Although the decision has made important points in terms of the element of originality, it has not reached a conclusion as to whether the phrase "Love is Labor" alone can be considered as a copyrightable work or a distinctive sign of a work that reflects the characteristic of its owner. Whether a short "motto" has the character of a work apart from the work of which it is a part, and to what extent the whole work contributes to this characteristic, is a question that can only be determined by a separate evaluation. Even in cases where such phrases or slogans may be accepted as signs of the work, it should be remembered that pursuant to Art. 83/2 LIAW, protection will not be granted to names and signs that are used by everyone and do not have a distinctive character. In conclusion, it is a matter of real curiosity what the final decision in this dispute will be.

^[1] The decision of the 11th Civil Chamber of the Court of Cassation dated 24.05.2022 and numbered 2020/8509 E. 2022/3996 K.

^[2] “The author of a cinematographic work is the one who produced it.” LIAW Art. 8, 01.01.1952

^[3] "The provisions of this Law pertaining to ownership of cinematographic works shall apply to cinematographic works the production of which has been commenced after 12.6.1995 when the Law No. 4110 entered into force." LIAW additional art. 2, Amended: 4630 - 21.2.2001

^[4] "Contracts and disposals relating to financial rights shall be in writing and the rights constituting their subject matter shall be specified individually."

^[5] "The title and distinctive signs of a work and the form of the reproduced copies of such work may not be used in another work or in the reproduced copies thereof in such a way as to cause confusion."

^[6] 11 CC dated 17.09.2019 and 2018/409 E. - 2019/5485 D.

First published by Gün + Partners in Jun 25, 2024.