The decision of the 11th Civil Chamber of the Court of Cassation dated 24.05.2022 and numbered 2020/8509 E. 2022/3996 K. has been enlightening both in terms of the examination of the distinctive signs of the work and the works bearing the characteristics of the author, and in terms of the amendments made to the Law on Intellectual and Artistic Works, especially regarding cinematographic works.
A. Summary of the Case
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 as well as for pecuniary and non-pecuniary damages 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 bank without any permission or approval from the plaintiff.
The defendant, on the other hand, 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 the famous Kyrgyz literary figure Aytmatov's story "Selvi Boylum", which was inspired by an anonymous Chinese fairy tale, 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.
B. Local Court Decision
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 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 of First Instance decided to reject the plaintiff’s claim for pecuniary and non-pecuniary damages on the grounds that the defendant bank obtained written permission from the producer company, which is accepted as 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.
C. Regional Court Decision
The Regional Court of Appeal, upholding the determinations of the Court of First Instance regarding the right ownership, 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 No. 5846 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 first and second 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 it did not bear the characteristics of the plaintiff as an expression used by everyone in the society.
The Regional Court of Appeal 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 and the decision of the court was rescinded in accordance with Article 353/1-b-2 of the CCP, whereby the case was dismissed with the corrected reasoning.
D. 11th Civil Chamber of the Court of Cassation’s Decision
Within the scope of its decision, the 11th Civil Chamber of the Court of Cassation first clarified the discussions regarding the plaintiff's right ownership as a screenwriter.
In this context, although the Supreme Court accepted that the producer is the author of the cinematographic works created before the amendment made by the Law dated 07.06.1995 and numbered 4110, 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 Law numbered 4110. It was also underlined that the dialog writers are also right holders in respect of the films made before 1995, since the same paragraph was annulled by the Constitutional Court with its decision dated 29.12.2011 and numbered 2010/73 E. - 2011/176 K. in respect of "dialog writers [and animators]". 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 also examined the nature of the agreement between the parties regarding the transfer of financial rights and the validity of the transfer of rights made within this scope.
At this point, it should be reminded that while all protection periods regarding copyright are currently regulated as long as the author lives and 70 years from the date of death (70 years from the date of publicity for legal entities) within the scope of Article 27 of LIAW, before Law No. 4110, the protection period of the rights arising from copyright was 50 years from the death of the author, and the protection period for cinematographic works was 20 years from the date of publicity in accordance with the abolished provision of Article 29 of LIAW.
In this respect, although there is no dispute that a contract was concluded between the film producer and the screenplay author 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 LIAW, the Supreme Court has correctly determined that this contract cannot cover the subsequent period and that the screenplay author transferred his financial rights to the producers for a maximum of 20 years. In this context, it is recommended that the owners of cinematographic works who have not fully taken over the rights arising from the screenplay should re-contract with the screenplay owners in order to exercise their rights arising from cinematographic works within the scope of the extended periods.
Another controversial issue was which rights were covered by the agreement signed in 1978 regarding the production of the movie and the use of the screenplay. Pursuant to Article 52 of LIAW, 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. On the issue of originality, the Supreme Court made the following assessment: "'The element of originality in a work, that is, "bearing the characteristics of its author", lies in the fact that the work would not have been created in the same manner and with the same characteristics if it had been created by someone else. In terms of screenplay works, originality must be sought in the general impression and effect left by the author of the novel/screenplay based on the plot, the characters and types created, and the actions and lines attributed to these characters, based on the same main fiction.''
In this context, 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 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.
E. Legal Evaluation
Within the scope of the Supreme Court's decision summarized above, first of all, the negative consequences for the plaintiff of the judgment established by the Local Court and the Regional Court of Appeal on the wrong grounds due to the amendments made in the LIAW in terms of cinematographic works are sought to be corrected. As stated in the decision, both the Local Court and the Regional Court of Appeal made a mistake in terms of right ownership by trying to apply the decisions of the Court of Cassation, which were originally rendered with respect performing artists who were not even protected as related right holders before Law No. 4110, to the case regarding the ownership of the work arising from a screenplay, which is an independent adaptation work.
Moreover, the fact that the Supreme Court, taking into account the date of the contract between the parties, has stated that the transfer of financial rights is effective only for a validity period that can be foreseen at that date, has contributed to the case law that the indefinite transfer of financial rights is limited to the period of protection at the time of the transfer.
However, although the decision has made important points in terms of the element of originality, it has not reached a conclusion as to whether the phrase "Love is Labor" alone can be considered as a copyrightable work or a distinctive sign of a work that reflects the characteristic of its owner.
Indeed, whether a short "motto" has the character of a work apart from the work of which it is a part, and to what extent the whole work contributes to this characteristic, is a question that can only be determined by a case-by-case evaluation. Even in cases where such phrases or slogans may be accepted as signs of the work, it should be remembered that pursuant to Art. 83/2 LIAW, protection will not be granted to names and signs that are used by everyone and do not have a distinctive character. In conclusion, it is a matter of real curiosity what the final decision in this dispute will be.