ARTWORKS
Scope of the Work
As it is known by the society, the work is the owner’s own effort; are products created in the field of literature, music or fine arts. In order for the work to be included in this scope; Its content, the material from which it is made, the thought it wishes to convey, when it was created, by whom, and such features do not matter. Works given in fields such as literature and music; It can be any thought that has the characteristics of its owner, it does not have to be material. As can be seen, the work can be concrete and abstract. The work that emerges with the creativity of the person must be created only by him and be unique to him.
The definition of the work has been made in the provision of Article 1/B of FSEK numbered 5846. Accordingly, the work; All kinds of intellectual and artistic products in the fields of science, literature, music or fine arts and cinema, which carry the personal characteristics of the owner. In the light of the article of the law, it should be said that the material and spiritual product, which has the characteristics of the person and can be revealed in certain areas, is a work. The owner of a work is the one who created it. The person who creates the work with his personal characteristics, his inner world, talents and competencies is the owner of the work. In order to understand the scope of the work, it is necessary to mention the owner of the work.
Intellectual and Industrial Property Law, which we can consider as an extension of the personal rights regulated in the Civil Code; It has regulated the definition of the work, who can and cannot benefit from the rights, and the legal and penal sanctions for the violation of these rights.
The works have been subjected to certain variations so that they can be interpreted in their own context and protected in case of violation of rights. From FSEK article 2, including article 7, these varieties were counted and exemplified.
Types of ideas and works of art:
Science and literature works
musical works
Virtu
cinematic works
Processing and compilations
Public and published works
The type of work we want to focus on here will be the types of paintings that are among the works of fine art. Fine art works are defined in Article 4 of FSEK. According to this; fine works of art, which have aesthetic value; oil and watercolor paintings; all kinds of pictures, patterns, pastels, engravings, beautiful inscriptions and illuminations, works drawn or fixed with metal, stone, wood or other materials by engraving, carving, inlay or similar methods, calligraphy, screen printing, sculptures, reliefs and carvings, architectural works, handicrafts and small works of art, miniatures and decorative art products, textiles, fashion designs, photographic works and slides, graphic works, cartoon works, all kinds of typifications.
Author’s Rights
The author has financial and moral rights on his work. These rights are subject to the whole and parts of the work. Intellectual rights, like industrial rights, do not arise by being registered in the Registry, but can be registered with the Ministry of Culture and Tourism, except for professional associations. This registration is only for proof in terms of right ownership, not founder. The author cannot waive his moral rights. Moral rights regulated in FSEK articles 14-17; The state of being submitted to the audience, the time of publication and the style are determined entirely by the author. Only the owner of the work determines the fate of the work, which has not been presented to the public in whole or in a substantial part. If the way the work is presented to the public or the way it is published is of such a nature that it will damage the honor and reputation of the owner, the owner of the work may prohibit the promotion or publication of both the original and the processed version of the work to the public, even if he has given written permission to someone else. It is null and void to renounce the prohibition authority by contract. The other party’s right to compensation is reserved. In this case, the publication of the work takes place with the decision of the owner of the work on the determination of the name or publishing it anonymously. Making changes, abbreviations or additions to the work or the name of the author; It cannot be done without the permission of the owner of the work, but in the work with the permission of the law or the owner of the work; The person who makes changes, copies, publishes or represents may perform the aforementioned actions even without the specific permission of the owner of the work. However, it should be underlined here that the owner of the work can forbid any changes that damage the honor and reputation of the people who can perform these transactions with their unconditional permission, or that distort the nature and characteristics of the work. It is null and void to waive the right to forbid, even if a contract has been made in this regard.
In the event that the property of the goods in which the work is embodied belongs to someone else, the owner of the goods is called the “original owner”. Article 17 of our FSEK No. 5846 tried to set forth the rights of the owner of the work against the owner of the work with the expression “Rights of the work owner against the possessor and owners” in case the owner of the work and the owner of the item in which the work is embodied are different from each other. The owner of the work is the place of the work in the trade area. (For example, the place where a sculptor supplies the marble in the sculpture he created.) In this case, the original owner, according to the terms of the contract he made with the owner of the work.
may act and may not dispose of the work as he wishes. The owner of the original cannot spoil, change or destroy the work. Despite the agreement between the owner of the work and the original owner, if the work is unique and original, the owner of the work may request the return of the work by providing the protection conditions in order to use it in works and exhibitions.
The authority to use financial rights belongs exclusively to the author. From the end of the protection period, everyone can benefit from the financial rights granted to the owner of the work. Unless required by the special contract between them or the nature of the work, the work is used by those who employ or appoint them. The producer or publisher of the work can only use the financial rights according to the contract he will make with the owner of the work. the right to make it public and the power to determine the name; If he has not determined the way they are used or has not left this matter to anyone, the use of these powers after his death, the will to the executor; If this has not been determined, it belongs to the surviving spouse, children and descendant heirs, parents, siblings respectively, but they cannot make abbreviations, additions or other changes in the work or the name of the owner of the work. However, they can use it on their own behalf for seventy years from the death of the owner of the work. These rights they can use; The situation of being presented to the public, the determination of the name and the changes in the work or the name of the owner of the work can be made by the persons mentioned above (to the executor of the will; if this is not appointed, respectively, the surviving spouse and children and descendant heirs, parents, siblings). If the owner of the work or the authorized persons do not use their powers, the person who acquires a financial right from the owner of the work or his successor can use all three rights on his own behalf, provided that he proves that he has a legitimate interest. When it is understood that there are more than one and they cannot take a decision, the court will finalize the dispute with a simple trial procedure in accordance with the possible request of the author.
The right to benefit from a work that has not yet been made publicly available belongs to the owner of the work regardless. The right to benefit from a publicized work, which is specifically granted to the owner of the work, consists of those specified as financial rights in the Law. If it is necessary to explain what is shown as financial right in the law; The first of these is the right to process. The right to process belongs exclusively to the author. Secondly, the right to reproduce the original or copies of the work in any form or method, in whole or in part, directly or indirectly, temporarily or permanently, belongs exclusively to the owner of the work. An example of this is the recording of any sound or image on a known vehicle. Another of the financial rights in the law is the right to disseminate. The right to rent, lend, sell or otherwise distribute the original or reproduced copies of a work belongs exclusively to the owner of the work. The dissemination of the work, in the circumstances listed, cannot lead to widespread copying of the work, in a way that harms the copyright of the owner of the work. The fourth right is the right of representation. Only the owner of the work has the authority to read, play, play and show the work that is the subject of the representation, directly or with the instruments used for the transmission of signs, sounds or pictures in public places. The last financial right regulated in the law is the right of transmission to the public by means of signal, sound and/or image transmission. Only the owner of the work can allow the original or copy of the work to be published in areas such as radio, television, digital transmission.
Protection Periods
The financial rights granted to the owner of the work are limited to a period of time, and these periods begin with the publication of the work. This period is calculated from the first day of the year following the day the work became public or the year in which it was deemed public. In the calculation of the periods starting from the death of the owner of the work, the first day of the year following the year the owner of the work died is considered the starting date. In cases where the work is jointly owned, the period begins after the death of the last survivor.
The protection period lasts for 70 years during the lifetime of the author and after his death. In cases where co-ownership is made, as we mentioned above; Based on the death of the last surviving owner, protection is provided for another 70 years.
In cases where the name is not specified; The work continues for 70 years after gaining publicity.
If the owner of the first work is a legal person, the protection period is 70 years from the date of publicity.
Intellectual property rights; public interest may be restricted in cases such as general interests (legislation and jurisprudence, speeches, use for educational purposes, scientific quotations, newspaper and news content), private interests (personal use, fine art works in open spaces).
Savings on Rights
The owner of the work has material and moral rights, but the person cannot dispose, transfer or renounce moral rights. It is possible to save on material rights.
Financial rights that may be subject to savings:
Original acquisition (takeover or license from the owner or heirs of the work)
Transferable acquisition (financial from the owner or heirs of the work)
transfer of that right by the person who acquires a right)
Contracts:
Contracts for financial rights are valid even if they are made before the work is created. Changes that have developed for all or a part of the works that the owner of the work will create may be terminated for each of the parties, one year after the notification date.
If the owner of the work dies or loses the ability to complete before the work is completed, or if the work becomes impossible to complete, the commitments automatically become void. The same provision remains valid in cases where the other party goes bankrupt, becomes incapable of using the financial rights it has acquired pursuant to the contract, or becomes impossible to use it without fault.
Contracts and savings must be in writing and the subjects must be shown separately.
The person who acquires the financial right from a person who does not have a license or authority to use it does not receive protection even if it is in good faith. A person who is not authorized but transfers the financial right to someone else or gives a license to use it; unless he proves that the other party knows or should know that he has no authority, he is obliged to compensate for the loss arising from the invalidity of the savings.
If the person who acquires a financial right or a license does not make use of his rights and powers duly within the agreed period, and if no time has been determined, within a suitable period of time and therefore the interests of the owner of the work are damaged, the owner of the work may withdraw from the contract. The owner of the work who wants to use his right of withdrawal has to give (notify) an appropriate grace to the other party through the notary public. However, if the right to use the right is impossible for the acquirer, or if it is rejected by the acquirer, or if the granting of the right jeopardizes the interests of the owner of the work, there is no need to grant a grace period. An appeal against withdrawal can be filed within 4 weeks from the notification of the withdrawal notice.
If one of the creators of the work dies before the work is completed or made public, his share is divided among the others. These persons are obliged to pay an appropriate price to the heirs of the deceased. If an agreement cannot be reached, the amount will be determined by the court. If one of the co-creators of the work dies after the work becomes public, the others are free to continue the union with the heirs of the deceased.
Renunciation (provided that they do not violate their previous savings, they can give up by issuing an official deed and announcing this issue in the Official Gazette)
Foreclosure and pledge
Heritage
Legal Actions That May Be Filed in the Case of Violation of Rights
1. Refund of Rape Case: A person whose moral and financial rights have been violated can file a lawsuit for the ref of the rape against the rapist. FSEK Article 66, “…If the rape was committed by a representative or employees of an enterprise while performing their services, a lawsuit may also be brought against the owner of the enterprise.”
The fault of the perpetrator or the persons mentioned in the second paragraph is not necessary. The court appraises the moral and financial rights of the author, the extent of the infringement, whether there is a fault, the gravity of the infringement, and the possible damages that may be incurred by the infringer in case of refusing, and decides on the implementation of the measures it deems necessary for the refusing of the infringement, as the case may be.
In case of infringement of moral rights, pursuant to Article 67 of FSEK, if a work that has not yet become public is presented to the public without the consent of the owner or against his will, the case for the infringement can be filed only if the condition of public offering occurs through the publication of duplicated copies. The same provision is also valid in cases where the name of the work is given against the will of the owner. If the name of the owner is not mentioned at all on the work or the name is misplaced or the name is of a nature to cause confusion and the owner of the work has requested the ref of the infringement other than the determination case mentioned in Article 15, the infringer is obliged to compile the name of the owner of the work, both on the original and on the duplicate copies in circulation. . Announcement of the verdict in maximum 3 newspapers can be requested at the expense of the violator.
In case of violation of moral rights:
Claims of the right owner if the work has been unfairly modified:
The owner of the work may request the reproduction in modified form for the publication and the correction or reinstatement against the representative party.
In fine art works, the owner of the work may request that the changes in the original are not made by him or that his name in the work is removed or changed.
In case of infringement of financial rights:
The price that the right holders, whose consent is not obtained, may be requested from those who process, reproduce, distribute, represent or transmit the work, performance, phonogram or productions to the public by means of any kind of sign, sound or image transmission without the written permission of the right holders in accordance with this Law, or may request up to three times more than the current value to be determined pursuant to the provisions of this Law.
If the unauthorized reproduced copies are not put up for sale, the right holder must destroy or produce the reproduced copies, films, molds and similar tools used for reproduction.
He may demand that it be given to him in return for a suitable price that will not exceed the initial cost price or, in case of a contract, three times the amount he may request. This does not remove the legal responsibility of the unauthorized duplicator. The person requesting compensation can claim all the rights and powers that he might have had against the rapist if he had made a contract with him.
Lawsuit against Rape: The owner of the work, who is exposed to the danger of infringement due to financial or moral rights, can sue for the prevention of possible infringement.
Compensation Lawsuit: A person whose moral rights have been violated can file a lawsuit for non-pecuniary damage in return for the moral damage he has suffered. If the person whose financial rights are violated, he/she may demand compensation within the framework of the provisions regarding tortious acts if the infringer is at fault. The person who has been raped may also request that the profit obtained be given to him in addition to compensation.
Miscellaneous Provisions
The rights related to the rights of the author are as follows (FSEK ARTICLE 80):
Rights adjacent to the rights of the author
The film producer, who makes the first determination of the films, has the following rights after taking over the authority to use the financial rights from the owner of the work and the performing artist.
For pictures and portraits in accordance with Article 86 of FSEK No. 5846; “Even if they are not in the nature of works, pictures and portraits cannot be presented to the public by display or other forms, unless 10 years have passed after the death of the person depicted, without the consent of those listed in the first paragraph of article 19, if the depicted is dead.” In the light of the aforementioned article, we should draw attention to a very important issue that “non-working” works are also subject to protection. The author, the authority to present the public and the authority to determine the name can be made public only after 10 years after the death of the depicted without his permission. In this direction, for example; Using a non-work photo without the consent of the owner.
To examine the clear decisions of the Supreme Court on the subject:
T.R. In the decision of the 11th LAW DEPARTMENT of the Supreme Court E. 2019/1117 K. 2019/8033 T. 10.12.2019; “According to the court, the claim, the defense, the verdict of reversal and the entire file, the photographs and images of the plaintiff were determined on the internet by the defendant and used without his permission, the action is related to the training of the announcer, which is the subject of the defendant’s commercial activity, that is, for commercial purposes, this situation is stated in Article 86 of the FSEK. On the grounds that the photographs and images of the plaintiff, which are specified in the article, are exhibited and made available to the public in other forms without their consent, that there is no one of the exceptional circumstances that do not require consent, which is limited in the same article in the concrete case, that the personal rights of the plaintiff are impaired and moral discomfort is experienced due to the unauthorized use of the photograph and image of the plaintiff. According to the nature of the use, the financial and economic conditions of the parties, the social situation of the parties, it was decided to accept the lawsuit and collect the non-pecuniary damage of 5,000,00 TL from the defendant with the legal interest to be accrued from the date of the lawsuit. Accordingly, the client clearly stated the damage.
