Decision on the Protection of Neighboring Rights in Cinematographic Works

The copyright law dispute, also known by the public as the case of famous actor Kemal Sunal, was concluded with the decision of the Court of Cassation General Assembly of Civil Chambers (“General Assembly”) after going through various stages for many years.[1]

In the lawsuit filed by the heirs of Kemal Sunal, the dispute centers on (i) whether it is possible to accept that Kemal Sunal’s economic rights as a performing artist within the scope of Article 80 of the Law No. 5846 on Intellectual and Artistic Works (“LIAW”) were transferred to the producer of the cinematographic works in question produced before 12.06.1995 through the contracts concluded between Kemal Sunal, as the leading actor of the subject works, and the producer of the works, and (ii) whether the plaintiffs can claim damages based on Kemal Sunal’s neighboring rights within the scope of Article 80 of LIAW because of the screening and distribution of the cinematographic works on platforms and venues other than movie theaters.

The General Assembly evaluated the dispute by analyzing the amendments made to LIAW by Laws No. 4110 and 4630 which introduced significant changes to LIAW and in some aspects created distinctions between works created before and after the date 12.06.1995. In summary, the General Assembly dictated that (i) performing artists will benefit from all neighboring rights granted under Art. 80/I-1-A of LIAW for their performances in works created before 12.06.1995 and that the relevant protection period will be seventy years from the first fixation of the performance, (ii) performing artist’s neighboring rights, which are protected under Additional Article 2/III of the LIAW, can only be exercised with the authorization of the right holder performing artist or his/her heirs, (iii) in the context of obtaining the performing artist’s authorization for the exercise of his/her neighboring rights, the provisions of Article 48 to 65 LIAW shall apply by analogy to the extent appropriate to their nature, (iv) pursuant to Article 52 of LIAW, contracts on economic rights or any other kind of exploitation must be made in writing and economic rights subject to such contract or exploitation must be indicated separately and individually, (iv) if a contract, involving the transfer of economic rights that have not yet been granted to the performing artist by law at the time of execution of the contract, was concluded before the amendments made by Laws No. 4110 and 4630, the transfer of economic rights that have not yet been granted to the performing artists as of the date of the contract will be invalid and the contracts containing the prior waiver or prior transfer of these rights will be null and void.

The General Assembly applying these findings to the concrete case decided that (i) the contracts concluded between Kemal Sunal and the producer do not constitute a contract that results in the transfer of the economic rights listed in Article 80/I-1-A of LIAW that Kemal Sunal holds as a performing artist because there is no written agreement in which the transfer of neighboring rights, which did not exist at the time of the execution of the contracts, is shown separately pursuant to Art. 52 of LIAW, and even if the existence of such an agreement is accepted, this agreement will be any way invalid pursuant to Art. 51 of LIAW, (ii) it cannot be argued that Kemal Sunal properly transferred to the producer his neighboring rights, which did not exist at the time of execution of the contract, (iii) it would be inequitable to accept that Kemal Sunal’s neighboring rights on the cinematographic works, which did not exist at the time, were transferred to the producer in return for the compensation paid to Kemal Sunal.

Consequently, the General Assembly found the decision of the Regional Court of Appeal to be in accordance with the procedure and the law, and concluded that the plaintiffs were entitled to claim compensation under Art. 80 of the LIAW for the uses subject to the lawsuit.

The General Assembly’s aforementioned decision contains explanatory findings regarding the duration and scope of the protection of the performing artists’ neighboring rights in the works created prior to 12.06.1995 and their relationship with the rights of the author.  Moreover, the decision clarifies the meaning and scope of Article 51 of LIAW.  In addition, the decision is significant in terms of resolving the uncertainties regarding the ownership and duration of protection of cinematographic works created before 12.06.1995, as we have previously covered in our article titled Protection of Cinematographic Works in Turkey. In this respect, it is considered that the decision will shed light on many points regarding the legality of right transfers as well as the issues regarding copyright and neighboring rights ownership on cinematographic works created before 12.06.1995.

[1] Court of Cassation General Assembly of Civil Chambers decision numbered E. 2020/350 K. 2022/1638 and dated 01.12.2022

First published by Gün + Partners in Jun 20, 2024.