The fact that a photograph is found on the internet, that a video is published openly or that an author's name appears beneath a text does not mean that the content can be used freely for commercial purposes. In a copyright dispute, the legal nature of the content, the right holder and the scope of the permission granted are determined first. Then the cessation of the use, claims for a fee or compensation and, where necessary, the criminal route are assessed. Giving the source is important, but it does not in every case take the place of the required permission to use. [S1]
This article deals in particular with uses on the websites, social media accounts, advertisements and catalogs of businesses. User-uploaded content, a campaign prepared by an agency and content produced directly by the business may not share the same chain of rights ownership.
Is every photograph, video and text a work?
Status as a work and other routes of protection
Under Law No. 5846 on Intellectual and Artistic Works (FSEK), the conditions for protection as a work are that it bears the individual character of its author and falls within one of the types of works listed in the law. Length or the use of professional equipment is not decisive in itself. A short text may contain original expression; a long list of data may not meet the same assessment.
For photographs, the angle, lighting, composition and creative choices; for texts, the manner of narration and expression; and for videos, the visual and audio structure may be examined. When the status as a work is disputed, it cannot be said that all legal protection ends. FSEK Article 84, unfair competition, personality rights or contractual provisions may provide separate protection in the specific case. The conditions of these routes differ from one another.
The distinction between an idea and its expression
A business idea, a method or a general subject does not confer a copyright monopoly merely because it was conceived. Protection, where its conditions are met, is directed at the concrete and original form of expression of the idea. Two legal articles explaining the same statutory provision are not in themselves an infringement; the unauthorized taking of original expression or structure is examined separately.
For official texts such as laws and court decisions, FSEK Article 31 is taken into account. By contrast, a private commentary written on a decision, a publisher's original explanation or a visual layout may be a separate work. The free status of an official text does not make all the content surrounding it free.
Who is the right holder, and is registration required?
The author is, as a rule, the person who created the work. Copyright protection is in general not dependent on a constitutive registration, as trademark protection is. Nevertheless, a record, a registration or a dated archive may serve an evidentiary function in a dispute over ownership and dates. A registration certificate does not conclusively resolve the originality of the work or the applicant's ownership in every dispute.
For works created by employees, FSEK Article 18 is assessed together with the employment relationship and the contracts. Paying a freelance photographer or receiving an invoice from an advertising agency also does not mean the unlimited transfer of all economic rights. A chain must be established showing from whom, and to what extent, the business acquired its authority to use the work.
In video projects, different rights may come into play for the director, screenplay, music, performers, producer and the persons appearing in the footage. Having obtained permission for the video itself does not show that the music or stock footage inserted into it can be used in every medium. The use of a person's image is examined separately from the copyright in the work.
How should a permission to use be drawn up?
A written contract and the separate specification of rights
FSEK Article 52 requires written form and the separate specification of the rights in contracts and dispositions concerning economic rights. It must be clear which of the rights of reproduction, distribution, adaptation, public performance and communication to the public have been granted. General statements such as "all rights are acquired" should not be accepted as an assurance without examining the parties to the contract and its entire content.
The conditions of term, territory, medium, advertising use, making modifications, allowing third parties to use the work and keeping it in an archive should be set out. A permission to use on a website for one year may not cover the use of the same image in outdoor advertising for an unlimited period. Delivery of a physical photograph or a digital file and the transfer of economic rights are also different transactions.
Stock content, open licenses and the agency relationship
For an image downloaded from a stock platform, the type of license, the date of purchase, the user account and the license conditions in force on that date should be kept. Matters such as commercial use, resale, distribution within a template and model release may vary according to the license. Open licenses may also contain conditions such as attribution, share-alike or a prohibition on commercial use.
In the contract made with an agency, the obligation to deliver the sources and permission documents of third-party content may be regulated. However, a permission given by the agency without authority does not in every case protect the business against the right holder. The business's right of recourse against the agency and the claims the actual right holder may direct at the business are separate relationships.
A real decision: exceeding a one-year photograph permission
In its decision of June 26, 2024, E.2023/2983, K.2024/5279, the 11th Civil Chamber of the Court of Cassation (Yargıtay) assessed the use of advertising photographs after the permitted period. The general approach to the transfer of rights in the contract made with the agency was not regarded as sufficient to provide unlimited authority through a relationship to which the author was not a party. The decision awarding a fee and non-material compensation for the use exceeding the period was upheld. [K1]
In the file, the consequence of acquiring rights from an unauthorized person under FSEK Article 54 and the fee claim under Article 68 are significant. The fees determined in the decision are not a tariff for other photographs or for the current market. The lesson in practice is that the business purchasing the advertisement should check not only the agency's invoice but also the authority to use, starting from the author, and the time limit.
The assessment in the decision of the claim under Article 68 by the hypothetical contract approach is also significant for limitation periods. This assessment does not mean that all copyright claims are subject to the same period. It must be determined whether the claim rests on Article 68, Article 70 or another legal ground.
What should be done when unauthorized use is identified?
First preserve the evidence
Before requesting that the content be removed, it may be useful to preserve records showing the scope of the use. The page address, the date of access, the account name, the medium of the advertisement and the appearance of the content should be recorded together. A cropped image alone may not show where the use took place.
| Document or record | What it proves |
|---|---|
| Raw photograph, project file, draft | Production process and ownership |
| Contract, license and correspondence | Rights granted, term and media |
| Dated page and advertisement records | Scope and continuation of the infringement |
| Earlier license agreements | Assessment of the market-rate fee |
| Invoices, campaign and access data | Commercial dimension of the use |
Where necessary, the court may be asked for the preservation of evidence. The technical files should be preserved in their original state, and any edits made to them should be kept in a separate copy. Collecting evidence by accessing another person's account without authorization is not an appropriate method.
Notice and content removal
A notice clearly identifying the right holder, the content, the right infringed and the request can be prepared. The platform's copyright application mechanism can also be used; however, the platform's removal of the content does not take the place of the court's assessment of infringement and compensation. An incorrect or overbroad notice may give rise to an objection by the other party and a discussion of liability.
FSEK Additional Article 4 contains a special mechanism for rights infringements in the digital environment. This route is not identical to the general access-blocking provisions and the platform's own rules. The addressee of the application, the required prior notice and the specific request must be examined separately. The closure of an entire website is not the natural consequence of every copyright allegation.
Fee, compensation and cessation of the use
The fee under FSEK Article 68
If the conditions of Article 68 are met for the right used without permission, the statutory increased claim comes into play, calculated on the fee that could have been requested had a contract been made or that is determined as the market rate. This claim, referred to in practice as the "threefold fee," does not mean that any figure requested is automatically multiplied by three. The scope of the use and the base market rate must be determined first.
The term, territory, medium, nature of the advertisement, characteristics of the work and comparable licenses matter. The use of a photograph on a single web page and its use in a large-scale advertising campaign may not have the same economic basis. The legal route and the amount requested should be set out clearly in the petition.
FSEK Article 70 and other claims
Compensation for culpable interference with economic rights, non-material compensation for violation of moral rights and, where the conditions are met, the surrender of the profit obtained may come into play. The aim should not be repeated recovery of the same economic loss under more than one name; the rule in Article 70 concerning the reduction of the Article 68 fee is also taken into account.
Claims for remedying the existing infringement, preventing its continuation or repetition and for an interim injunction can be assessed separately. Merely claiming money does not by itself bring an ongoing campaign to an end. By contrast, removal of the content does not eliminate all the economic consequences of the past use.
Court, time limits and criminal complaint
Under FSEK Article 76, the jurisdictional arrangement of the intellectual and industrial property courts applies. Territorial jurisdiction is determined together with the legal nature of the claim and the special provisions. For monetary claims, the status as a commercial case and mediation as a condition precedent to litigation are examined separately. It is not correct to name a single court location or a single prior application method for every copyright dispute.
The statute of limitations may vary according to the legal basis of the claim. The Article 68 fee and tort compensation should not be treated in the same way. As for the criminal complaint, FSEK Article 75 and Article 73 of the Turkish Penal Code (TCK) are assessed together; in general, the six-month complaint period running from learning of the act and the offender is important. The submission of the documents showing ownership within the complaint period is separately regulated in the FSEK.
It cannot be said that every unauthorized use automatically constitutes a crime. The elements of the offense in the law, intent, ownership and the permission status are examined. A criminal application also does not by itself ensure that the fee sought in the civil action is collected.
Conclusion
The most effective step in preventing a copyright dispute is to establish the chain of ownership and permission before the content is used. When an infringement arises, the evidence, the scope of the use and the correct type of claim should be planned together. A strong file for the right holder requires more than the bare claim "the work is mine"; a strong defense for the business requires more than the explanation "I paid the agency."
Related articles: Design Infringement: Copied Products, Evidence and Compensation; Trademark Infringement: Stopping Unauthorized Use and Compensation; Domain Name Disputes: .tr Applications, UDRP and Recovery of a Domain Name.
Frequently Asked Questions
If I give the source, can I use the photograph without permission?
Not in every case. Attribution does not take the place of the required license. Whether a statutory exception or a valid permission to use exists must be examined.
Is an image downloaded from the internet considered royalty-free?
No. Accessibility and authority to use are different. The source of the content and the license conditions must be verified.
If the infringing content is removed, does the monetary claim end?
Removal may end an ongoing infringement; it does not by itself eliminate the claim for a fee or compensation for past use.
Can every image produced with artificial intelligence be used freely?
Such a generalization cannot be made. The terms of the production tool, human contribution, third-party works, and trademark and personality rights must be assessed together. The statement "produced by artificial intelligence" is not in itself a legal safeguard.
Sources and legal bases
- Law No. 5846 on Intellectual and Artistic Works (Fikir ve Sanat Eserleri Kanunu), especially Arts. 1/B, 2–5, 8, 18, 21–25, 31, 35, 52, 54, 57, 66–77, 84 and Additional Art. 4. Page of laws of the Ministry of Culture and Tourism and link to the official text.
- Turkish Penal Code No. 5237, Art. 73; Turkish Code of Obligations No. 6098, Arts. 72, 146; Turkish Commercial Code No. 6102, Art. 5/A. Legislation Information System (Mevzuat Bilgi Sistemi).
- Court of Cassation (Yargıtay) 11th Civil Chamber, June 26, 2024, E.2023/2983, K.2024/5279. Full-text record — De Jure, an access account may be required; alternative decision record. The reasoning and conclusion sections of the full text have been reviewed.