Creative Signatures: How a Work Reflects Its Author’s Unique Characteristics

The Law on Intellectual and Artistic Works ("LIAW"), which has been amended many times since its entry into force in 1952, still causes uncertainty and confusion in practice. The 2022 decision of the Court of Cassation^[1] and the recent decision of the 16^th Civil Chamber of the Istanbul Regional Court of Appeals[2] have been a very guiding and clarifying decision in terms of examining the signs of the work, which are controversial in practice, and the amendments made to LIAW, especially with regard to cinematographic works, and the issue of the works bearing the characteristics of the owner.

The lawsuit subject to the decision was filed by the screenwriter of the 1977 film "Selvi Boylum, Al Yazmalım", where the plaintiff filed the court action based on violation of his rights arising from the copyright on the screenplay and unfair competition due to the use of the slogan "Sevgi Emektir“ (“Love is Labor") in the screenplay of the film, which was inspired by the work named "Red Scarf" and created as an independent adaptation, in the commercial of the defendant without any permission or approval from the plaintiff. The defendant based his defense on the fact that the screenplay of the film "Selvi Boylum, Al Yazmalım" was not entirely original since it was inspired by Aytmatov's story "Selvi Boylum" and that all rights on the film belonged to the producer since the film was made before 1995, and that the rights to use the work were duly purchased from the persons holding the financial rights.

The Court of First Instance ruled that since the movie subject to the lawsuit was made before 1995, the first version of Article 8 of the LIAW[3] will be taken into consideration and accordingly, the producer who produced the movie will be deemed as the author, and the plaintiff will not have a financial right in the works in question, since the script and the movie were created before 12.06.1995. In addition, the Court considered that the screenplay was adapted from Aytmatov's novel and that the only part where the plaintiff could claim a right on the screenplay was the plaintiff's contribution to the screenplay in terms of characteristics. In this context, the Court decided to reject the plaintiff’s claims for damages on the grounds that the defendant obtained written permission from the producer company, which is the author, to use the images of the film in the commercial, and that the financial rights were transferred to the defendant in accordance with the law as per the document in the file relating to the transfer of the rights.

The Regional Court of Appeal ruled in the same direction and stated that the first version of Article 8 of the LIAW should be taken into consideration in accordance with the explicit provision of Additional Article 2 of the LIAW[4] and argued that the plaintiff cannot claim a right arising from the LIAW as a screenwriter in terms of cinematographic works. However, although the Court stated in the expert reports that the phrase "Love is Labor" was identified with the film as it was the motto of the film and should be protected as a work, the Court stated that this phrase became impressive with the other elements in the scene and the talents of the performing artists and concluded that the expression did not bear the characteristics of the plaintiff and is used by everyone in the society. The Court rejected the appeal of the plaintiff’s attorney since the plaintiff could not make a claim based on the rights arising from the script in accordance with Additional Article 2 of the LIAW and the plaintiff did not have a copyright on the expression "Love is Labor" separate from the script, thus the Regional Court of Appeal ruled that the decision of the Court of First Instance to dismiss the case was appropriate since it was also determined that the plaintiff had transferred all his financial rights.

Within the scope of its decision, the Court of Cassation clarified the discussions regarding the plaintiff's right ownership as a screenwriter and although it accepted that the producer is the author of the cinematographic works created before the amendment made by the Law dated 1995, it emphasized that this provision is not applicable in the concrete case, since the owners of the screenplay works are considered as authors both before and after the amendment. In this context, the reasoning of both the Local Court and the Regional Court of Appeal that the plaintiff cannot assert his rights arising from the screenplay he wrote as an adaptation was found incorrect.

Subsequently, the Supreme Court held that although there is no dispute that a contract was concluded between the film producer and the screenwriter for the production of the relevant film and the use of the screenplay, considering that the term of protection of a film shot in 1978 is 20 years from the date of publicity under the FSEK, this contract cannot cover the later period and that the screenwriter transferred his financial rights to the producers for a maximum of 20 years. Which rights were covered by the agreement signed in 1978 regarding the production of the movie and the use of the screenplay was discussed as well. Pursuant to Article 52 of LIAW[5], the transfer of a financial right shall not be valid unless it is shown separately and in writing. Therefore, in the concrete case, it has been correctly determined that the signed agreement is valid only for the use of the screenplay in cinema screenings, and that the defendant has not obtained a written permission for the use of the screenplay in a commercial.

Finally, the Supreme Court analyzed the most controversial point in the dispute, which is the issue of originality, it has been stated that in order for the work to reflect the characteristics of the author, originality is not sought in each element or sentence of the work, it is sufficient that the impression created by the combination of these elements as a whole is original, and in terms of the concrete case, it has been accepted that the display of the phrase "Love is Labor" by presenting excerpts from the film evokes the elements of the scenario work as well as the cinematographic work.

As a result, it was not deemed correct by the Regional Court of Appeal to rescind the decision of the Local Court and to dismiss the case on different grounds, and the judgment was reversed in favor of the plaintiff since although there is no dispute that the plaintiff is the author of the work on the scenario, it is necessary to evaluate whether the phrase "Love is Labor" is a work or at least a "distinctive sign of the work" pursuant to Article 83/1[6] of LIAW and whether the unauthorized quotation made accordingly requires compensation protection pursuant to Article 68 of LIAW based on the rules of infringement or unfair competition.

Following this, the case was remanded to the 16^th Civil Chamber of the Regional Court of Appeal, where the plaintiff's attorney requested compliance with the Court of Cassation's reversal order, while the defendant's attorney argued for upholding the previous decision. In its decision dated April 5, 2023, the Chamber finally decided to comply with the Court of Cassation's reversal order.

In this context, the Regional Court of Appeal, referencing the expert report in the appeal file, noted that the phrase "Love is Labor", which serves as the motto of the film “Selvi Boylum Al Yazmalım”, was not directly included in the commercial but instead appeared in the phrase "then you can explain that love is labor." The court also acknowledged that this motto held impact through the contributions of the film’s actors, director, and composer. On the other hand, the court recognized that the commercial contained scenes reminiscent of the film and this motto, incorporated key moments and dialogue, which effectively evoked the emotional essence of the screenplay. As a result, the court definitively ruled in favor of the plaintiff, finding a violation of their financial and moral rights as the screenplay's author and awarding compensation.

In reviewing the case, the Regional Court of Appeal did not establish whether the phrase "Love is Labor" alone could be considered a distinct, protectable work bearing the characteristics of its author or a distinctive sign of the work. Rather, after evaluating the defendant’s commercial as a whole, the court concluded that it was intended to evoke the plaintiff's script, thereby constituting violation of its rights. Indeed, determining whether a brief motto qualifies as an independent work requires assessing the extent to which the larger work contributes to its distinctiveness. In cases where such phrases or slogans are discussed, it is important to note that, under Article 83/2 of the LIAW, protection is not granted for commonly used names and expressions lacking distinctive character. In line with the final decision of the Regional Court of Appeal, it can be concluded that a phrase like "Love is Labor" would be difficult to protect in isolation, without the accompanying script and other defining elements of the cinematic work.

You can find more details on the conditions for protecting the names and signs of a work in the article titled "Protection of the Names of Works" by Atty. Hande Hançar Koç and Atty. Havva Yıldız.

[1] The decision of the 11th Civil Chamber of the Court of Cassation dated 24.05.2022 and numbered 2020/8509 E. 2022/3996 K.

[2] Istanbul Regional court of Appeals, 16th Civil Chamber decision dated 05.04.2023 and numbered E. 2022/1348 K. 2023/600 T. 5.4.2023

[3] “The author of a cinematographic work is the one who produced it.” LIAW Art. 8, 01.01.1952

[4] "The provisions of this Law pertaining to ownership of cinematographic works shall apply to cinematographic works the production of which has been commenced after 12.6.1995 when the Law No. 4110 entered into force." LIAW additional art. 2, Amended: 4630 - 21.2.2001

[5] "Contracts and disposals relating to financial rights shall be in writing and the rights constituting their subject matter shall be specified individually."

[6] "The title and distinctive signs of a work and the form of the reproduced copies of such work may not be used in another work or in the reproduced copies thereof in such a way as to cause confusion."

First published by Gün + Partners in Mar 04, 2025.