Law on Intellectual and Artistic Works No. 5846 (the “LIAW”) takes a very formalistic approach regarding the transfer of copyrights arising from these types of work.
Under the Turkish copyright law, the general principle is that the person who actually creates a work is the author of that work. The “work made for hire” concept is not accepted under Turkish law. The right transfers should be made in writing, once the work is embodied, indicating, expressly, which rights are transferred, and under which conditions.
As per Article 48 of the LIAW, in order to realize the assignment, the work should be physically created. Any agreement that relates to the transfer of rights arising from work that has not yet been created, or shall be completed in the future, shall be null and void.
However, as per Article 50 of the LIAW, it is possible to take undertakings from the right owners for right transfers relating to future works. Therefore, before the work has been physically created, the right owner is able to undertake the assignment of the rights on the future work for a specified party. For a valid assignment, however, a separate deed of assignment must be signed once the work has been completed.
Because of the practical difficulties created with this formalistic approach, we see that the Court of Appeals does not consider the transfer or license agreements that relate to future works to be null and void, but considers that these agreements should be accepted as undertakings from the right owners.
In addition, because of the difficulties of this two-stage agreement process, the Court of Appeals also accepts that despite the lack of a second agreement, if the parties act in accordance with their undertakings, and if the work is completed as agreed, then the rights are deemed to be transferred. This view of the Court of Appeals is also supported by some scholars.
Thus, while the Law is very strict about the transfer of rights, in practice, we see that these principles are softened. That being said, despite his/her undertakings, if the right owner rejects, or is unable to execute, the second agreement (after the completion of work), when we follow the case-law of the Court of Appeals, if the talent/ performer received the payment as agreed and completed his/her undertakings, then it would not be possible to argue the invalidity of the first agreement, and the work owner will be deemed to have his/her rights assigned.
While this assessment is based on current practice and case-law, to be on the safe side, it is advised to implement a two-stage action despite the practical difficulties.