In cultural heritage and inventory studies, in addition to written information, the use of visual materials and photographs is also of great importance for the preservation, research, and transmission of cultural heritage—which constitutes the collective memory of all humanity. However, while contributing to inventory studies, it is of particular importance—in accordance with legal and ethical principles—to avoid infringing on individuals’ intellectual property rights. This article will briefly address the issue of third parties using photographs taken within the context of cultural heritage without the permission of the rights holders.
According to Law No. 5846 on Intellectual and Artistic Works, ownership rights related to photographs are regulated in three categories; pursuant to Article 8 of the law, “The owner of a work is the person who created it.” In the absence of a written contract between the parties, the ownership right belongs to the person who took the photograph. Registration is not mandatory for copyrights; a work made available to the public with the rights holder’s consent is deemed to have been made public, and legal protection begins upon such public disclosure.
Under the FSEK, photographic works are categorized into three main groups: photographs with aesthetic value (those possessing artistic merit), photographs of a technical or scientific nature that lack aesthetic value, and ordinary photographs.
1-) Photographs with Aesthetic Value (Possessing Artistic Qualities):
Although the definition of “aesthetic value” and what constitutes the “author’s individuality” are not very clearly defined in the law, in the event of any dispute, a determination can be made by obtaining an expert opinion. [1] Although there are various views in legal doctrine, according to Supreme Court decisions, the author’s distinctiveness in photographic works is determined based on the chosen subject, preparatory work, and style; while aesthetic value is determined by the way in which what is visible to the naked eye is conveyed in a different form through techniques such as shadow, light, composition, sharpness, and shutter speed.[2]
Based on these criteria, the question that must be asked is whether anyone with similar equipment, present at the same time and place, could take the photograph in question without any effort. If the answer to this question is “no,” then the photograph in question is considered to be protected under the Copyright Law.
In summary, for a photograph to be considered a “work” under Article 4/5 of the FSEK and to be eligible for the rights enumerated in the FSEK, it must first bear the “distinctive character of its creator” and, secondly, possess “aesthetic” value.
2-) Photographs of a Technical or Scientific Nature That Lack Aesthetic Value:
According to the law, certain specific photographs are recognized as works and protected under the law even if they do not possess the general characteristics of a work. Pursuant to Article 2(3) of the FSEK, “photographic works of any technical or scientific nature” fall into this category.
Even if such works do not possess the aesthetic qualities specified in Article 4, they must still be “of a scientific and technical nature” and, in any case, must bear the “distinctive character of the author.” Generally, disputes regarding the scientific and technical aspects of such works are limited; however, disagreements tend to center more on the issue of the author’s individuality.
For example, according to a 2004 Supreme Court of Appeals decision, since there will inevitably be similarities between maps created by different experts regarding the same geographic region, in which case it would be necessary to determine whether the work constitutes an independent intellectual creation; furthermore, it was accepted that the criterion for determining whether such works bear the creator’s distinctive character should be based on the independent effort expended rather than on the work’s originality. [3]
3-)Ordinary Photographs
Ordinary photographs—that is, photographs taken for the purpose of recording everyday events or memories—cannot be considered “works” and are therefore not protected under the safeguards provided in the Copyright Law. However, according to Article 84 of the FSEK, “…the provisions of this article also apply to all types of photographs that do not constitute works, as well as images and cinematographic works recorded by similar methods.”
Consequently, these photographs—which do not qualify as works but are owned by an individual—are protected under property law and the rules governing unfair competition. Since the photographer is the absolute owner of the photograph unless proven otherwise[4], they may prohibit third parties from using it. In this regard, the photographer may file lawsuits to establish unfair competition, to prevent unfair competition, to remedy the material consequences resulting from unfair competition, as well as claims for monetary damages in cases of fault and for moral damages in cases of infringement of personality rights; furthermore, from a criminal law perspective, the rights of the author remain reserved if the conditions are met.
Use of Photographs Belonging to the Copyright Holder by Third Parties Within the Scope of Journalistic Activities:
In addition to the general provisions regarding photographs and ownership rights under the Copyright Law (FSEK), an amendment was made to Article 37 of the FSEK by Law No. 4630 in 2001, introducing a special provision. This provision allows, provided that the use is of a news nature and does not exceed the scope of information dissemination, it is permissible to incorporate certain portions of literary and artistic works into media used for the transmission of signs, sound, and/or images in connection with daily events; furthermore, the reproduction, distribution, performance, or broadcast of such incorporated portions via media such as radio and television is permitted. However, this freedom granted in relation to journalistic activities is not unlimited; it is stipulated that such use “may not be made in a manner that would harm the legal interests of the rights holder or be contrary to the normal enjoyment of the work,” It is thus specified that such use must not be of a nature that would harm the rights holder’s legal interests or personality rights, nor may it be used in a manner contrary to the normal enjoyment of the work.
Neither the 2001 amendment to the law nor certain amendments made in 2004 provided adequate regulation regarding copyrights in online publishing, particularly because Article 37 has become open to interpretation as creating the impression that it grants the press an unlimited right to quote, thereby sparking controversy. In interpretations based on the legislative amendments, the concepts of “special public interest” and “public interest”—which are of a higher order than the grounds for legality as set forth in Article 24/2 of the Turkish Civil Code—are viewed in intellectual property law as circumstances that restrict the rights of the author. [5]
On the other hand, copyright infringements on the internet persist as a significant problem because it is easy to copy a news article or photograph published online and repost it on one’s own website without much effort, as this does not entail any additional costs and there is no legal regulation in this area. [6] Although the Press Law No. 5187, which entered into force in 2004, imposes a fine for the republication of news articles and articles, and images from a periodical without citing the source to a monetary fine; however, the risk of infringement against the rights of authors and/or rights holders who publish their works on different platforms outside the framework of a periodical still persists. With the exception of a few journalists and media organizations in Turkey that have reputable policies regarding copyright and attribution for visual content, the practices observed in reality indicate that the potential for abuse of Article 37 of the Copyright Law persists.
In summary, within the scope of reporting news and providing information about a work—even if the law does not explicitly require citing the source—the news report must identify the author and the work, the report must be relevant to the work, the report must serve a news-gathering purpose; it must, on the one hand, be in the public interest and, on the other hand, not infringe upon the copyright holder’s rights; and the use of a portion of the work must be necessary based on the content of the news report. This is, in fact, an indispensable condition for a report to qualify as news. [7]
Use of Individuals’ Private Photographs for the Purpose of Promoting Cultural Heritage:
In accordance with the decision of the Supreme Court’s General Assembly of Civil Chambers (YHGK)[8], even if published online, a private photograph may not be used “without permission and for commercial purposes”; and that failure to do so may result in an award of moral damages on the grounds of an infringement of personality rights—is significant as a striking example in the process of promoting cultural heritage and, in particular, cultural memory.
According to the ruling, regarding the unauthorized use of a childhood photograph published on a website—which was deemed a “violation of personality rights”—an individual named A.Ö. had granted permission for the black-and-white childhood photograph, taken by his photographer grandfather in 1964 of him and his sister at the old Customs Square in Mersin,black-and-white childhood photograph—taken in 1964 at Mersin’s old Customs Square—be posted on a website promoting Mersin. A company then took this black-and-white photograph, displayed it in its store window, and printed it on its business cards; A.Ö., who happened to see the photo in the store window, filed a lawsuit in the Mersin 3rd Civil Court of First Instance seeking 10,000 lira in moral damages, alleging that the company had used his childhood photographs “for commercial purposes and without permission,” which constituted a violation of his personal rights. Ultimately, the case was brought before the General Assembly of the Court of Cassation, where it was deliberated and a decision was rendered. The General Assembly upheld the lower court’s decision, finding that “the fact that the photograph pertains to childhood and private life, and that consent was given for its publication on the website for cultural and promotional purposes, does not imply permission for its reproduction and use for commercial purposes.” In summary, the use of individuals’ personal photographs without their consent may constitute a violation of personal data protection and an offense under Articles 134 and 136 of the Turkish Penal Code; furthermore, if the photograph is used “without permission and for commercial purposes” or if it directly infringes upon an individual’s rights, the possibility of compensation for moral damages may arise.
Photographing Movable and Immovable Cultural Assets Subject to Law No. 2863 and Property Rights:
Finally, it is worth mentioning Law No. 2863 on the Protection of Cultural and Natural Assets. This is because movable and immovable cultural assets, which form the subject of cultural inventory studies, are classified as “state property” pursuant to Article 5, are considered “State property.” Furthermore, pursuant to Article 34 of the same law and the relevant regulation—the “Regulation on the Filming and Photographing of Cultural Assets in Museums, Units Affiliated with Museums, and Archaeological Sites, and the Production of Casts and Copies Thereof,” “The taking of photographs and films of movable and immovable cultural assets at archaeological sites and museums affiliated with the Ministry of Culture and Tourism, as well as the production of casts and copies thereof, for the purposes of teaching, education, scientific research, and promotion, is subject to the permission of the Ministry of Culture and Tourism.”
In accordance with Article 34 of the Cultural and Natural Heritage Protection Law (KTVKK) and the relevant regulation, prior permission must be obtained from the relevant authority for the “photographing and filming of cultural assets, and the production of casts and copies thereof”; photographs, slides, films, videos, microfilms, photocopies, drawings, casts, impressions, replicas, reproductions, and similar processes,” prior permission must be obtained from the relevant authority.
However, according to Article 6 of the regulation, “The matter of which cultural assets may be photographed or filmed by the public without permission, and under what conditions, in museums, museum-affiliated units, and archaeological sites, shall be determined by museum directorships in accordance with principles to be established in advance by the Ministry.”
Consequently, the question of whether the ownership rights to photographs taken without permission belong to the state or to the author/rights holder will give rise to a separate debate.
Regarding the permission to take photographs as stated in Article 34 and the relevant regulation, when considered together with both the discretionary authority of museum administrations to designate areas where no permission is required and the Ministry of Culture’s Revolving Fund Operations Directorate (DÖSİM) Temporary Use Guidelines[9], it can be interpreted that this issue may arise in cases involving “commercial” purposes; however, it is crucial that the relevant provision in the law be clear and unambiguous, and that sanctions be established for violations of the relevant article to prevent potential harm to both individuals and the public.
In conclusion, the use of visual sources alongside written information in cultural heritage and inventory studies is of great importance for the preservation, research, and transmission of cultural heritage, which constitutes the collective memory of all humanity. However, when using visual materials, particular attention must be paid to the legal procedures regarding attribution. Furthermore, the fact that photographs are available as open-source material on the internet does not imply that the photographer has transferred ownership rights to third parties; even if the photograph is copyrighted, contacting the copyright holder and obtaining permission is a legal requirement.[10] If the photographer is not the same person as the subject of the photograph, the source must be verified—unless the rights have been transferred via a contract— If the photograph constitutes a work protected under the Copyright Law, permission must be obtained; even if it is not a protected work, permission should be sought whenever possible, and to avoid plagiarism, explicit attribution to the copyright holder or the source of the work must be provided in accordance with ethical principles.
Attorney Mert ERDOĞAN
This article was written by Attorney Mert ERDOĞAN. Even if the source is cited, the entire article may not be used without special permission. However, a portion of the quoted text may be used provided an active link is provided. Publication of this article, in whole or in part, without citing the author and source constitutes a violation of personal and intellectual property rights.
[1] Supreme Court of Appeals, 11th Civil Chamber, Case No. 2002/8275, Decision No. 2002/8839, Date: February 11, 2002
[2] ŞAHİN, Ayşenur: Protection of the Author’s Economic Rights in Intellectual Property Law, Erzurum 2009, p. 40.
[3] Supreme Court of Appeals, 11th Civil Chamber, Case No. 2004/2772, Decision No. 2004/12672, Date: December 21, 2004
[4] Supreme Court General Assembly of Civil Chambers, Case No. 2017/134, Decision No. 2020/474
[5] KILIÇARSLAN, Seda Kara: The Perspective of Overriding Private and Public Interests Regarding Restrictions Imposed on Intellectual Property Rights in Press Activities, Gazi University Faculty of Law Journal, Vol. XX, Year 2016, No. 1, pp. 137–161, p. 158.
[6] UZUN, Ruhdan: News Copyright and Plagiarism in Online Journalism, İletişim Publishing House, 2005, p. 66.
[7] ARIDEMİR, Arzu Genç: The Author’s Right of Reproduction and Distribution in Turkish Law, Vedat Publishing House, Ankara, 2003, p. 7.
[8] Supreme Court of Appeals, General Assembly of Civil Law, Case No. E.2021/381, Decision No. K.2021/593, Date: September 19, 2021
[9] http://dosim.kulturturizm.gov.tr/sureli-kullanim-yonergesi
[10] https://www.telifhaklari.gov.tr/Genel-Sorular