Cinematographic works, which are one of the types of works protected in accordance with the Law on Intellectual and Artistic Works numbered 5846 (“IPL”), are defined as “works such as films of an artistic, scientific, educational or technical nature or films recording daily events or movies, that consist of a series of related moving images with or without sound and which, regardless of the material in which they are fixed, can be shown by the use of electronic or mechanical or similar devices”.
In order for a product produced in accordance with the IPL to be accepted and to be protected as a cinematographic work, that work must meet the conditions of i) bearing the character of its author, ii) being completed to a certain level, and iii) having a series of moving images. A work that has these conditions will be able to benefit from the protection and rights granted within the scope of the cinematographic work in the IPL.
The author is the person who created the work and also, is the owner of the copyright. In cinematographic works, since there are different contributions from multiple people such as a director, screenwriter, composer, costumer, and cameraman, it is usually not a single person who owns the work. In cinematographic works that have emerged in different fields and with the creative participation of multiple people, identifying a single person as the author and/or the right owner is not accepted as the correct way. For this reason, there will be joint ownership of a work by various people who work or take part in the creation of a cinematographic work.
In the occurrence of a cinematographic work, persons and organizations that provide public access to the work have the rights as well as the author and/or joint authors and these rights are protected under the Intellectual Property Law. Performing artists, radio and television organizations/broadcasting organizations, and filmmakers are recognized as "associated rights holders”. The rights related to the rights of the author consist of “rights adjacent to the rights of the author” and “rights of producers”. Within the scope of neighboring rights, several rights have been granted to the performers.
Real persons who interpret, introduce, explain, sing, play, and perform a work of thought and art in an original way are considered performers. The performer does not create the work and has the role of an intermediary. The performer serves to disseminate the created work to the public by presenting an original performance.
In the Supreme Court decisions, the condition of expressing the performance in a unique way is stipulated in order for the performer to be deemed the author and have certain protection. Meanly, the condition is the execution of the “performing in a unique way”. In this regard, the issue of whether people who act in a cinematographic work can earn the title of the performer is explained as “taking into account whether the performance is performed in an 'original form' rather than whether the people involved in this work are the main or supporting performers” within the scope of the Supreme Court decision numbered 2017/7348 and dated 18/02/2017.
In a way, the performer serves not to create the work, but serves to spread the work with the intellectual work the performer expands. Therefore, the performer, who mediates the dissemination of the work and puts forward a unique performance, has the rights as the author, which are protected in accordance with IPL. These rights granted to the performer are briefly listed below.
The right to request to be identified as the owner of the performance in relation to their performance and to prevent the falsification of the performances in a way that damages their own reputation,
The right to authorize or prohibit the reproduction, sale, distribution, rental and lending, transmission and retransmission and representation of the performance by means of sign, sound and/or image transmission,
The right to authorize or prohibit the distribution of the original or reproduced copies of the determined performances, which have not yet been put up for sale or distributed in other ways, by sale or by other means,
The right to authorize or prohibit the sale or otherwise public distribution or presentation of its fixed performance or reproduced copies, and their transmission to the public, by ensuring that their performance is reached by natural persons at the place and time they choose,
The right to transfer its rights to the producer with a contract in return for a reasonable price,
Since there will be no transfer of moral rights, the performer’s moral rights will not be the subject of a transfer. The performer will only be able to transfer the authority to use these rights to the producer. The financial rights belonging to the cinematographic works are transferable and the performer can remove these rights from their assets and transfer them.
According to Article 48 of the IPL, the parties can make agreements regarding the financial rights of the work in a limited or unlimited manner in terms of place, time, and content. This article also finds an area of application for the performer who is considered to be the owners of related rights. Therefore, the performer can determine the transfer, form, and duration of financial rights in the contracts as he/she wishes. Having said that, in practice, it is often seen that the financial rights of performing are transferred to the producer without any limitation. With this, the movie producer can perform all the operations and save on the movie alone. It should be noted that the permission given by the performer and the contract must be made in accordance with the provisions of Article 52 of the IPL. The contract for financial rights must be in writing and the rights to be transferred must be shown separately in the contract.
To gain these related rights, the performer is required to perform the work. In order the performance the work, the performer is required to obtain approval from the author of the work. In cases where more than one person is the author, which is frequently encountered in practice, the performer is required to obtain separate permission from each author. As a result of the permission of the author, the performer will have the non-derogable right to the work that the author originally acquired.
In event that there is more than one performer in the performance of the work, the performers acquire these rights together and as a rule, they can use their rights together as long as they do not authorize any person among them to use these rights. However, in the event of violation of the performer’s rights, each performer has right to act alone regarding the violation.
The related rights of performer artists for seventy (70) years, starting from the date of the first determination of the performance, as stated in the Regulation on Neighboring Rights. If no determination has been made, this period of seventy (70) years starts from the date that the work becomes public.
The related rights of the performer regulated in the IPL apply to only the citizens of the Republic of Turkey and these provisions are also applied to the performances abroad of the citizens of the Republic of Turkey. In addition to this, regardless of the nationality of the performer, if the performance takes place within the borders of Turkey, it will still be subject to the provisions of IPL.
The provisions regarding the cessation of infringement, prevention of infringement, and action for damages for the protection of the rights of the author also apply to the protection of the related rights granted to the performer.
Authors: Hatice Ekici Tağa, Öykü Su Sabancı