In the face of developing technology, a common question has arisen as to whether any works that are not specifically listed in the Turkish Intellectual and Artistic Works Code (“the Code”) may benefit from copyright protection. When it comes to advertising films, which may be broadcast on television or any number of internet platforms, the question of copyright protection is generally grounded in the principle of numerus clausus for a “work of art.” Although there are some questions regarding whether certain types of advertising films fall outside the scope of numerus clausus under the Code, the common approach is to begin by analyzing copyright protection of advertising films as works of art.
Our Paper on Copyright Law series has previously explained in detail the necessary criteria for an intellectual product to be considered a work of art within the scope of the Code, but we will briefly list them here before examining how they apply to advertising films. The criteria are as follows: (i) the work must be an expression of creative ideas, (ii) the work must be recorded materially, (iii) the work should carry its author’s characteristics, and (iv) the work must fall under one of the five categories listed under Articles 2-6 of the Code. These categories are: (i) scientific and literary works, (ii) musical works, (iii) works of fine arts, (iv) cinematographic works, and (v) adaptations and collections. A work can only be protected under the Code if it meets all of four criteria and falls into one of the five categories. Furthermore, Article 5 of the Code defines cinematographic works as a series of interrelated moving images, with or without sound, that can be displayed by electronic or mechanical or similar means, regardless of the material from which they are detected, such as films or films of any kind, scientific, educational or technical nature or detecting daily events.
Since advertising films are not specifically mentioned in the Code, legal experts have offered many opinions regarding their legal status under the Code. According to the majority view, if an advertising film bears the characteristic of its author and qualifies as a “cinematic work” as defined in Article 5 of the Code, then it can be considered a “work of art" within the scope of the Code that can benefit from copyright protection. However, there are those who argue that advertising films should be included under a separate section in the Code due to their uniquely complex nature, which contain many elements such as scripts and music.
In addition to the views of legal experts, the established case law of the Court of Cassation shows that advertising films are considered “cinematic works” if they possess the necessary elements. In addition to many similar decisions, the 11th Civil Chamber of the Court of Cassation, held that “… this advertising film[is] in the nature of a cinematic work within the scope of the Code…” This clearly shows that advertising films containing the necessary elements in Articles 1 to 5 of the Code, and having a script and a director can be considered “cinematic works” and benefit from copyright protection within the scope of the Code.
Consequently, advertising films that meet the above criteria may be protected as cinematic works within the scope of the Code, regardless of the fact that “advertising films” are specifically listed as a type of work in the Code.
Authors: Bilge Derinbay, Hande Ülker Pehlivan
Contact: bilge.derinbay@nsn-law.com
