The Reflection of the Author’s Personal Characteristics and the Transfer of Economic Rights in the Court of Cassation’s “Selvi Boylum Al Yazmalım” Decision
Introduction
The Law on Intellectual and Artistic Works No. 5846 (“LIAW”) conditions the recognition of an intellectual product as a “work” (eser) under the LIAW—and thus its protection—on two fundamental criteria: the intellectual product must fall within one of the categories of works explicitly enumerated in the LIAW and bear the personal characteristics (hususiyet) of its author. Within this framework, not every intellectual product benefits from the protection provided by the LIAW; to qualify, the product must reflect the individuality of its creator and possess a degree of originality that exceeds a mere commonplace expression. On the other hand, pursuant to Article 52 of the LIAW, for the grant of a license in favor of a third party or for the transfer of economic rights over a work that satisfies the above requirements and thereby benefits from LIAW protection, a written agreement must be executed, and the specific rights subject to disposition must be separately identified in that agreement.
In its decision dated May 24, 2022, numbered 2020/8508 E. and 2022/3996 K., the 11th Civil Chamber of the Court of Cassation addressed both the question of when a work bears the author’s personal characteristics and the requirement under Article 52 of the LIAW that the transfer of economic rights over a work must be made through a written agreement explicitly specifying which rights are being transferred. Additionally, the decision includes other important remarks that are particularly relevant to cinematographic and screenplay works. This legal bulletin article will examine the decision, focusing on how it approaches the condition that a work must bear its author’s personal characteristics and the issue of the transfer of economic rights, as well as the instructive clarifications it provides in these respects.
Background of the Dispute
In the dispute at issue, the plaintiff — the screenwriter of the film Selvi Boylum, Al Yazmalım — claimed that the use of the phrase “Love is labor” (Sevgi emektir), which highlights the theme of love and the idea that love requires great effort, in a bank commercial without his consent constituted an infringement of his intellectual property rights and an act of unfair competition. The court of first instance found that the plaintiff had adapted the screenplay of the film from a novel and that the only aspect over which he could claim authorship was his personal contribution to the screenplay in terms of originality. It further noted that the film and its screenplay were created before 1995 and, therefore, that the previous version of Article 8 of the LIAW— which provided that the producer of a film made before that date was considered the owner of the work — would apply. Referring also to a deed of transfer of economic rights in the case file, the court concluded that the plaintiff had already transferred his economic rights to the film’s producer. Since the producer had granted permission to the bank for the use of the film’s footage in the commercial, the court held that the conditions for an infringement claim had not been met and rejected the plaintiff’s claims for damages based on alleged intellectual property infringement and unfair competition. The court additionally remarked that, given the film’s production date and the transfer of economic rights, it was debatable whether a few sentences from the film could be evaluated separately from the film itself.
The plaintiff appealed the first-instance decision. The Regional Court of Appeal, considering the phrase “Love is labor” in connection with the screenplay as a work, held that under the Additional Article 2 of the LIAW— which states that “the provisions of this Law regarding ownership of cinematographic works shall apply only to films whose production began after June 12, 1995” — the former version of Article 8 should apply. Accordingly, the plaintiff could not claim any rights under the LIAW. The appellate court also found that the phrase “Love is labor” had become associated with the film, deriving its emotional impact from the screenplay, acting, and overall expression of the film, and that, because it had entered common use, it lacked the distinct originality necessary for protection and could not be owned by any individual or treated as a separate work. Moreover, in view of the first-instance court’s finding that the plaintiff had transferred all economic rights in the cinematographic work to the producer, the appellate court dismissed the appeal and upheld the lower court’s judgment.
Assessment of the Court of Cassation
In its review, the Court of Cassation first stated that a screenplay constitutes a distinct literary work within the meaning of Article 2/2 of the LIAW, as it deals with the arrangement and narration of scenes that enable a play or film to be presented to an audience in a certain order and logic, as well as the verbal and nonverbal lines of the characters and types created through such narration. The Court further emphasized that a screenplay may qualify as an independent work from the outset, or, pursuant to Article 6 of the LIAW, it may be created by adapting a pre-existing work, in which case it will be considered a “derivative work” (işleme eser) if it reflects the adapter’s own intellectual effort and creativity and differentiates itself from the original work to reveal a new creative expression. Indeed, the screenplay of the film in question was inspired by another work entitled The Red Scarf (Kırmızı Eşarp). Through this reasoning, the Court provided useful guidance on when a derivative work may be deemed to exist and concluded that, in the present case, the screenplay at issue could be considered a derivative work—a qualification that does not preclude its protection under intellectual property law.
The Court of Cassation then addressed one of the provisions relied upon by the Regional Court of Appeal in rejecting the plaintiff’s claims—Additional Article 2 of the LIAW—and held that this article would not apply to the author of a screenplay, since screenwriters were already recognized as authors both before and after the enactment of Law No. 4110. Accordingly, the plaintiff remained the rights holder of the screenplay even at the time in question. The Court also noted that the application of this provision had been repealed for dialogue writers on the grounds that it was unconstitutional.
The Court further examined the lower courts’ reasoning that the plaintiff had transferred his economic rights in the film and screenplay to the producer. It held that even if such a transfer had occurred in compliance with Article 52 of the LIAW, that transfer could only have been valid for twenty years—since the film was produced before 1995, when the protection term for cinematographic works was twenty years, as opposed to the post-1995 uniform term of the author’s lifetime plus seventy years (or seventy years for legal entities). After that twenty-year period, the rights over the screenplay would revert to the author for the remaining term of protection. By so holding, the Court set out its approach to the reversion (rücu) of intellectual property rights to the author. The Court based this interpretation of Article 51/2 of the LIAW, which provides that an author cannot waive in advance the benefits of any future legislative amendments extending the scope or duration of economic rights. It underscored that, under this article, any future legislative change broadening the protection of economic rights must accrue to the author’s benefit.
The Court also examined the deed of transfer of economic rights submitted in the case file and found that the plaintiff, as the author of the screenplay, had only transferred his rights with respect to the film’s theatrical exhibition. Since there was no express permission for the screenplay to be used separately in a commercial advertisement, the Court held that the use of the work was lawful and legitimate only to the extent explicitly authorized. Consequently, the Court found the lower court’s conclusion—that the transfer of rights over cinematographic work also covered its use in a commercial advertisement—unfounded, given the absence of any such provision in the deed of transfer. Through this assessment, the Court reaffirmed the necessity of complying with the formal requirements of Article 52 of the LIAW for the lawful transfer of economic rights.
As to the main subject of this article—the requirement that a work bear the author’s personal characteristics—the Court explained that originality lies in the fact that, if another person had created the same work, it would not have been made in the same form or manner. Thus, a high degree of creativity or imagination is not required. For screenplays, the individuality should be sought in the overall impression created by the plot, the characters and types developed, and the actions and dialogue assigned to them, rather than in isolated elements.
The Court, citing H. Arsanlı, Fikri Hukuk II, also observed that a work’s reflection of the author’s individuality does not mean that every part or sentence of it must be entirely original; originality does not have to pervade the whole work, and a relative degree of originality may suffice. It then turned to the concrete case, stating that the crucial point was whether the advertisement alleged to infringe the intellectual property rights used one or more words that evoked the emotions of “Selvi Boylum, Al Yazmalım”. The Court concluded that the depiction of the phrase “Love is labor” (“Sevgi emektir”) alongside clips from the film indeed evoked the feelings conveyed by both the cinematographic and the screenplay works. Accordingly, it overturned the decision of the Regional Court of Appeal and held that the trial court should determine whether the phrase “Love is labor” constituted an independent work or, if not, whether it qualified as a “sign of the work” (eserin alameti) under Article 83 of the LIAW and, on that basis, whether its unauthorized use without the screenplay author’s consent gave rise to damages under Article 68 of the LIAW or under the rules of unfair competition.
In conclusion, through this decision, the Court of Cassation established a guiding approach regarding the criterion that a work must bear the author’s personal characteristics, reaffirmed the necessity of adhering to the formal requirements under the LIAW for the valid transfer of economic rights, and provided an important clarification on the reversion of such rights to the author. Moreover, while the Court recognized that a film and its screenplay are two distinct works, it nonetheless opened the door—considering the specific circumstances of the case—to assess whether a single sentence within a screenplay could qualify as a separate work under the LIAW.
Conclusion
Since, in its current form shaped by subsequent amendments, the LIAW constitutes a relatively recent piece of legislation governing a highly dynamic field, certain concepts and underlying principles contained in its provisions gain clarity only through judicial interpretation; otherwise, uncertainties may arise as to how the provisions incorporating these concepts should be construed. In this context, decisions such as that of the Court of Cassation dated May 24, 2022 — which forms the subject of this legal bulletin — are significant because, even though each case is fact-specific and the outcome may vary depending on the particular circumstances, such rulings provide valuable insight into how courts might approach similar disputes in the future. In this decision, the Court made instructive observations that help anticipate when one of the essential conditions for an intellectual product to qualify as a “work” under the FSEK — namely, that “the work must bear the personal characteristics of its author” — may be considered satisfied. In light of these explanations, it is understood that the fulfillment of this condition lies in the notion that, had another person created the same work, it would not have been made in the same form or manner, and that in assessing this criterion, the individuality should be sought in the overall impression and impact the work creates as a whole. The decision also underscores the necessity of complying with the formal requirement prescribed in Article 52 of the LIAW for the valid transfer of economic rights. Furthermore, it is noteworthy for its clarifications regarding the reversion of economic rights to the author. Finally, although the Court did not reach a definitive conclusion on whether a single sentence within a screenplay could be considered a separate “work” or a “sign of the work”, its indication of this issue opens the door for potential future assessments on this matter.
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