Updated: Oct 31, 2022
According to the Law on Intellectual and Artistic Works with No. 5846 (“IPL”) one of the protected types of works is a cinematographic works. There are many kinds such as motion picture, TV series, commercial film, documentary film within the scope of works that have the nature of cinematographic works. While these works are being created, different contracts are being made with many people who contribute to these works in order to work in an organized manner. One of these contracts is the contracts concluded with the actors involved in the cinematographic works.
The actor phrase defines as “Artists who interpret, introduce, recite, sing, play and perform a work in an original form, with the permission of the author provided that the moral and economic rights of the author are not prejudiced…” in Article 80 of Law No. 5846.
The actor, meanly, the performer, performs a movie by playing the role given to him in the cinematographic work in return for the price to be given by the producer through the actor contract established between him and the producer and transfers the related financial rights or power to use to the producer. As we can understand from here, the parties of the actor contract are the actor and the producer.
The Turkish Code of Obligations No. 6098 (“TCO”) or any other special law does not specifically regulate the actor agreements. For this reason, actor contracts are considered among the innominate contracts.
1. Mutual and compatible declarations of will of the actor and the producer are sufficient for the establishment of the actor contract, and there is no requirement to the other conditions. Therefore, actor contracts are consensual contracts.
2. While the actor has the obligation to play the role in the related cinematographic work and to perform the cinematographic work and to transfer the related financial rights or the power to use to the producer, the producer also has the duty to pay a price to the actor. Since both sides of the contract are in debt, actor contracts are synallagmatic contracts.
3. Since the actor's execution of work is not an instantaneous performance, it is also necessary to transfer the related financial rights in exchange for this activity. Since the actor's connection with the rights will continue after the transfer, the actor contract is considered as a contract that procures a continuous debt relationship.
4. Under the actor's contract, the actor undertakes not only to perform the cinematographic work, but also undertakes its result. In this respect, it is thought that the actor contracts have the nature of a work of contract, which is one of the contracts of employment.
5. The provisions in the actor contracts are mostly prepared in advance and unilaterally by the producer, and the same provisions are included in different contracts. It is the prevailing opinion that these provisions have the nature of a general transaction condition, and therefore, articles 20 to 25 contained in the TCO will be apply.
There are four elements of the actor contract below;
- the existence of a work suitable for execution within the scope of IPL,
- the actor’s performance of the cinematographic work,
- transferring the related financial rights or power to use to the producer by the actor,
- the price given by the producer to the actor.
Since the actor's contract is a contract in which the actor performs the role assigned to him in a cinematographic work that is one of his actions in accordance with the script and undertakes to transfer his neighboring rights (related financial rights) to the producer on this performance, it is considered as a contract that gives rise to both employment and assignment debt.
There is no detailed regulation in the IPL on the transfer of neighboring rights, and it is aimed to resolve this situation through attribution. For this reason, the general provisions of the IPL will be applied in the transfer of neighboring rights. In accordance with Article 52 of the IPL, the qualified ordinary written form requirement applies in terms of the transfer of neighboring rights. The transferred neighboring rights should be stated separately, one by one, in the contract and the contract should be made in writing.
D. LEGAL CHARACTERISTIC
The actor contract is considered among the innominate contracts as it is not regulated specifically in the TCO or other codes. It would be a wrong approach to treat all actor contracts which also leads to many problems in the sector, as a uniform contract. For this reason, the provisions added to the contract as a result of the will of the parties in such a contractual relationship should be evaluated separately before each concrete event, taking into account conditions such as the nature of the work to be performed.
Although the characteristics of each contract should be considered separately and examined according to the concrete event, the opinions in the doctrine regarding the legal characteristic of actor contracts are briefly as follows:
i. Opinion on The Contract of Work
The elements of the contract of employment are that the work is created as a result of independent work and a fee is paid in return. In this context, it is considered as a contract of work, since the actors perform their performance independently and the actors operate based on the result, not the time. In many decisions given by the Supreme Court, it is accepted that the actor's contract is a contract of work.
ii. Opinion on The Contract of Employment
An employment contract is a contract that consists of one party (the employee) undertaking to work as a dependent, and the other party (the employer) undertaking to pay wages. The elements of the employment contract are wages, employment (labor) and dependence. The most important criterion that distinguishes the employment contract from the work and power of procuration contracts is the dependency element.
This opinion argues that the dependency element of the employment contract is also carried by the actor contracts. It is also argued that the actors do not act completely independently in this process, while the actors put forward their own creativity and perform the work in an original form. It is considered that such contracts are an employment contract, since the assessment of the independent performance of the actors does not correspond to the usual flow of the industry, and such work does not fully meet the element of independent work contained in the contract of employment. There are also decisions of the Supreme Court in which the actor's contract is considered a contract of employment.
Although the actor's execution of work under the actor contract is an execution that guarantees a result, we believe that the execution of the transfer of related financial rights (neighboring) prevents the contract from being considered as a typical contract of work. In addition to this, some actors perform their works completely dependent to the producer in practice. For this reason, actor contracts should be interpreted as a mixed contracts, and the legal characteristic of the actor contract should be evaluated by examining the relationship between the actor and the producer in each concrete case.
Authors: Hatice Ekici Tağa, Öykü Su Sabancı