1. WHAT IS THE COPYRIGHT?
According to the definition made by the General Directorate of Copyright, copyright is the legal rights provided on the products that the person creates with all kinds of intellectual labour. Copyright is not a right subject to the registration. Rights on intellectual and artistic works are originated with the production of the work. The intangible goods created by human thought are protected by copyright. Copyrights can be claimed against everyone.
Pursuant to the Law on Intellectual and Artistic Works numbered 5846 (“Law”), the duration of the rights on the works lasts as long as the owner lives and 70 years after her/his death. With the expiration of the protection periods, the financial rights granted to the owner of the work end and therefore, works with expired protection can be used freely without the permission of the owner of the work.
Copyright is a right related to human rights. The concept of copyright is also regulated in article 27 of the Universal Declaration of Human Rights, adopted at the United Nations General Assembly of 1948. According to this article, “Everyone has the right to participate freely in the cultural activity of society, to taste fine arts, to participate in the advancement in science and to benefit from it. Everyone has the right to demand the protection of their moral and material benefits arising from any scientific, literary or artistic work that they own (create).”
2. COMMERCIAL FILMS UNDER THE LAW
When the content of the law is examined, it is seen that the concept of “commercial film” is not explicitly included. In the Law, all kinds of intellectual and art products counted as science and literature, music, fine arts or cinema works having the characteristics of the owner are stated within the definition of work. In this context, cinema films are the closest concept to the “commercial film” concept. In order to mention of a work, we would like to state that the primary criterion is the “creative” feature of the owner of the work.
The cinema works, in accordance with Article 5 of the Law, are defined as films of any kind, scientific, instructive or technical nature or identifying everyday events, or sequence of moving images which are regardless of the material to which it is detected, audible or silent, interrelated, which can be displayed by electronic or mechanical or interrelated with each other, like cinema films. Therefore, although the commercial films are protected as copyrighted within the scope of copyright, it is not correct to conclude that every commercial film has the feature of cinema.
In order for a commercial film to be considered as a cinema work, as we have mentioned above, it must meet the conditions in article 5 of the Law. In addition, when the commercial films are evaluated in the light of the explanations made by the General Directorate of Copyright, the following conditions must be met in order to protect the commercial films:
- Being the product of an intellectual effort
- Having the owner’s ownership
- Being shaped
- Entering one of the types of works listed in the Law.
3. COPYRIGTS IN COMMERCIAL FILMS
As we mentioned above, commercial films are considered as cinema works provided that they meet the necessary conditions under the Law and may be subject to copyright.
According to the Law; the owner of a work is the person who created it. A work can have more than one owner. The owner of a processing or compilation is the one who processes it, without prejudice to the rights of the original owner. In cinema works; the director, the original music composer, the screenwriter are the owners of the work together. Also, in the cartoons, the animator is counted among the owners of the work. So, who is the copyright holder in commercial films?
Pursuant to paragraph 3 of Article 8 of the Law, the director, original music composer, script writer and dialogue writer are the co-owners of the work. Therefore, as we have mentioned above, the director, the original music composer, script writer and dialogue writer having the title of “owner of the work”, will copyright owner in commercial films that have the characteristics of cinema.
In commercial films, the main parties in general are the customer and the advertising agency. However, as a result of today’s professionalization, the advertising agency can receive services from more than one party during the production of the relevant advertisement. At the same time, it is seen that, in accordance with the advertising contract between the customer and the advertising agency, the customers mostly demand that all copyrights of the advertisement be transferred to them. In case the copyright remains with the owner of the work, the owner of the work can request the customer to stop the publication, or use the right to file a criminal or indemnity suit, provided that it does not violate the integrity rule. At this point, it is very important to transfer the copyright to the customer in the contracts signed between the customers and the advertising agency, and it will be beneficial for the customers to examine the advertisement contracts in detail and to arrange them comprehensively.
4. VIOLATIONS OF COPYRIGHTS
Pursuant to Article 66 of the Law, anyone who has been infringed in moral and financial rights can sue action of trespass against to such person in general.
In accordance with Article 67 of the Law, If the work has been unlawfully modified, the rightsholder may claim the following:
- The owner of the work may claim that reproduction, publication, performance and broadcasting by radio of the modified work be prohibited and that the modifications in the reproduced copies already in circulation be corrected by the infringer or restored to their original form. If the modification is made by publication in a newspaper or journal or by radio broadcasting, the owner of the work may claim the administrations of such newspapers, journals or broadcasting organizations that have published the modified work to correct the modification at the expense of the infringer.
- In the case of works of fine art the owner of the work may claim an announcement be made declaring that the modification in the original work has not been made by him, or may claim that his name be removed or changed on the original. If it is possible to restore the work to its original form and if removal of the modification does not significantly prejudice the interests of the owner or of the public, the author may restore the work to its original form.
In case of infringement of financial rights, pursuant to Article 68 of the Law; the right holders whose permission was not obtained may claim the payment of compensation of up to three times the amount that could have been demanded if the right had been granted by contract, or up to three times the current value which shall be determined under the provisions of the Law, from persons who adapt, reproduce, perform or communicate to the public by devices enabling the transmission of signs, sounds and/or images the work, performance, phonogram or productions or who distribute reproduced copies thereof without written permission of the author pursuant to the Law. If the reproduced copies have not been put up for sale, the right holder may claim that the reproduced copies, films, moulds and similar devices enabling the reproduction be destroyed or be surrendered to him in return for equitable remuneration not exceeding their production cost price or may claim the payment of three times of the amount he would have demanded, if a contract had been concluded. These claims shall not remove the civil liability of the person who has undertaken the reproduction without permission.
Additionally, in accordance with Articles 69 and 70 of the Law, the owner of the work whose moral or economic rights are in threat of being infringed may bring the action to prevent the probable infringement and any person whose moral rights have been infringed may bring an action for moral damages for the moral injury she/he has suffered.
In addition, we would like to state that the infringement of moral, financial or related rights falling within the scope of Article 71 of the Law constitutes a “crime” under the Law and related legislation.
Even if commercial films are not explicitly regulated in the Law, if they meet certain conditions, they are accepted as a work under the Law and can benefit from the protection caused by the work. Considering the financial benefits of copyright-protected commercial films for customers, it is possible to say that the use or transfer of copyright is very important in advertising contracts to be signed with advertising agencies. Moreover, in case that the right to use or direct transfer of copyright is not provided to the customer, it will result in very strict sanctions under the Law.
Kilinc Law & Consulting