Freedom of Quotation in Cinema Works

With respect to lawsuits filed in the scope of Law No. 5846 on Intellectual and Artistic Works (“FSEK") No. 5846, an important standard in terms of plagiarism is the limits of freedom of quotation. According to Article 35 of the FSEK, in order to make a quotation from a work, it is necessary to; (i) incorporate some sentences and paragraphs of a work made public, into another work of science and literature, (ii) incorporate certain elements of a published composition, at the most of such as themes, motifs, passages, and ideas, into an independent musical work, (iii) insert  works of fine art that have been made public and other published works into a scientific work  for the purpose of explaining its contents and to the extent justified by such purpose; or (iv) display works of fine art that have been made public in scientific conferences or lectures by means of projection and similar methods to explain the subject.

Although quotation is permitted in the aforementioned cases, it is also stated in the law that it must be done in a specified manner. In the case of scientific works, the name of the quoted work and its author, as well as the place where the quoted part was taken, should be indicated.

The fact that the mentioned article of the law refers solely to works of science and literature expressed in language and writing, physical works of fine art, and musical works has led to debates on the limits of the freedom of quotation in terms of cinematographic works. Since works eligible for quotation and into which quotations can be made are limited under Article 35 of the FSEK, and since cinematographic works are regulated separately from other types of works mentioned under Article 5 of the FSEK, courts generally hold the opinion that cinematographic works are not among the works eligible for quotation, mainly because it is not explicitly regulated in the law.

In this regard, the 11th Civil Chamber of the Court of Cassation stated in its decision dated 25.9.2018 with the number E. 2016/14735 K. 2018/5691 that "Although it is possible to make a quotation without permission from the author from legally published works of science and literature, music, or fine arts within reasonable limits and subject to citation rules under Article 35 of Law No. 5846, it is understood that the work subject to quotation in the specific case is a cinematographic work, as indicated in Article 5 of the FSEK, which defines cinematographic works as an independent type of work, and therefore not eligible for quotation."

However, there are also opinions in the legal doctrine that, since the third subparagraph of Article 35 of FSEK stipulates that publicized works of fine arts and other published works may be quoted to a scientific work within a proportion justified by the purpose and in order to illuminate its content, if a cinematographic work has a scientific character, for example, if it is a scientific documentary, it is possible to quote other works to the cinematographic work in question. In the mentioned opinion, it is argued that the entertainment purpose of the cinematographic work should not outweigh its scientific nature. Although it is argued within the scope of this opinion that it is possible to make quotations from cinematographic works due to the mention of publicized works in the first paragraph of Article 35 of the FSEK, the general approach in the doctrine is that, due to the explicit wording of the relevant paragraph, the works eligible for quotation and those into which quotations can be made are limited to written works of science and literature.[1]

Indeed, the decision of the 44th Civil Chamber of the Istanbul Regional Court of Appeals numbered E. 2020/1079 K. 2022/664 and dated 21.4.2022 is in line with the majority opinion in the doctrine: "Although Article 35 of the FSEK constitutes a provision regarding freedom of quotation, the issue of quotation from one cinematographic work to another (in the form of a documentary film as in the present case) is not regulated... Although the program subject to the lawsuit is a documentary, since it is clear that commercial gain will be obtained from this documentary, it has been seen that the current use is not included in the reasons for compliance with the law and the right of the author is violated due to unauthorized use, for these reasons, the reason for appealing that the use in the case is within the limits of freedom of quotation is not appropriate."

An opposite finding is present in the decision of the 11th Civil Chamber of the Court of Cassation numbered E. 2020/1399 K. 2021/1927, dated 3.3.2021. In the mentioned decision, it is stated that considering the showing of the cover of the plaintiff's book and the mention of the plaintiff in the documentary cinematographic work published by the defendant, "the existence of a valid reference in accordance with the procedure should also be accepted when considering the genre of the work created through the processing of the script." In this context, taking into account that the defendant also stated the name of the author, moral compensation should not have been awarded and it was not found correct to make a decision without considering this issue. From the mentioned decision, it can be understood that the documentary cinematographic work of the defendant is interpreted as a "work of science and literature" and accepted as a work into which quotations can be made.[2]

Another important exception that needs to be mentioned regarding freedom of quotation in cinematographic works is the news exception found in Article 37 of the FSEK. Within the scope of the aforementioned article, it is permissible, provided that it is in the nature of news and does not exceed the scope of informing, to take parts of all intellectual and artistic works related to daily events for transmission by means of signs, sound, and/or images, to reproduce, disseminate, represent, or broadcast such taken parts by means such as radio and television, as long as it does not harm the legal interests of the rights holder and does not violate the normal use of the work.

The decision of the 11th Civil Chamber of the Court of Cassation numbered E. 2016/14735 K. 2018/5691 dated 25.9.2018 has made determinations regarding the limits of the news exception. In this regard, the decision held that "the "news" exception regulated in Article 37 of the FSEK is possible for cinematographic works; however, the quotation must be included in a news article related to daily events and must be for information and must not exceed a reasonable amount. In the concrete case, it was found that the interview conducted with the actor of the "..." film did not have the nature of being related to daily events, and it cannot be said that it is necessary to show some parts of the movie to the public during the interview. Therefore, the acceptance of the "news" exception under Article 37 of the FSEK by the court was deemed incorrect, and the unauthorized exhibition of the work, even partially, was considered a violation of rights.”

It is evident preserving a broad interpretation of the freedom of quotation is crucial for fostering scientific and cultural accumulation in our nation. However, given the above-mentioned contradictory decisions and doctrinal opinions, it becomes apparent that obtaining necessary permissions from the rights holders of the relevant works could be beneficial when making quotations from or within cinematographic works, even when they are of scientific nature or pertain to news content.

[1] Öncü, Özge. "Fikir ve Sanat Eserleri Hukukunda İktibas Serbestisi ve Sınırları." Doktora Tezi, Dokuz Eylül Üniversitesi, 2009, pg. 296 vd.

[2] As a result of the first instance court's persistence against the reversed decision, with the recent decision of the Court of Cassation General Assembly dated 14.6.2023 with file number E. 2022/219 K. 2023/631, it was stated that sufficient examination regarding whether the book belonging to the plaintiff carries the plaintiff's uniqueness was not conducted. Therefore, it was emphasized that the entire book in question should be examined, and the parts considered as plagiarism due to unauthorized quotation should be evaluated to determine whether they possess the plaintiff's uniqueness. Consequently, the decision of the first instance court to persist was annulled, and the case was remanded to the local court for reconsideration.

* First published by Gün + Partners.