Legal Journal

Commercials and Copyright Protection

There is no specific definition for commercials under the Law on Intellectual and Artistic Works ("Law"); whereas, there is a definition for “cinematographic works". For this reason, it is not correct to say that any commercial shall be automatically protected by copyright law.

A cinematographic work must include two elements that the Law seeks in all kinds of works. The first element is that, in order for a product arising from creative activities to be accepted as a “work” under the Law, it should “bear the characteristic of its author”. It means that the "creativity" of the author is revealed in the related work. For a commercial, consisting of moving images which bear the structural requirements defined below, to be considered as a work; the characteristic of the author needs to appear on that work. However, there is another controversy here; a cinematographic work is a work of more than one author and created by more than one person. Then how will the characteristic of the author of the work be determined? We can state that there are many doctrinal debates on this issue. The second element is that the work must be fixed in a physical material. These two criteria, which are defined as objective and subjective elements, must be found in all kinds of works as well as cinematographic works.

After putting forward these general features, we can move on to the elements that originate from the cinematographic work's own characteristic. According to the Law, “cinematographic works are works such as films of an artistic, scientific, educational or technical nature or films recording daily events or movies, that consist of a series of related moving images with or without sound and which, regardless of the material in which they are fixed, can be shown by the use of electronic or mechanical or similar devices” (Art.5). At this point, it is understood from the wording of the Law that definition of cinematographic works is based on the following expression “series of related moving images regardless of the material in which they are fixed”. According to the stated definition, since a commercial is also made up of moving images and the preposition “such as" is used for the examples given therein, commercials may also fall into the category of cinematographic works.

The second definition in the Law related to cinematographic works is as follows; “in the case of cinematographic works, the director, the composer of original music, the scriptwriter and the dialogue writer are joint authors of the work. For cinematographic works which are produced with the technique of animation, the animator is also among the joint authors of the work” (Art 8.3). This definition is related to the “authors of cinematographic works”; however, since it indirectly expresses the elements of a cinematographic work, it is also related with the definition of the “work”. The Article points out five structural elements in a cinematographic work; the director, the composer of original music, the scriptwriter, the dialogue writer and the animator. Thus, a second question emerges about commercials; should we consider a certain product as a “cinematographic work” if one of these structural elements is missing? For instance, if there is no original music, no script or dialogue in a commercial shot by a director, should such a product be protected by copyright law as cinematographic work? In other words, what are the essential structural elements to consider a product as a cinematographic work?

Since the terms “with or without sound” are included in Article 5 of the Law; it can be concluded that such works can be constituted without any music and dialogues. Thus, when we interpret Article 8.3., it can be concluded that existence of a script and a director are the mandatory elements in this regard. This approach also dominates the doctrine. Since there is no specific running time envisaged for cinematographic works, short films/cinematographic works can also benefit from copyright protection.

Therefore, a commercial with at least a simple and short script and a director, which also possesses objective and subjective elements defined under the Law, shall be protected as a "cinematographic work". Further, in legal practice, commercials are considered as “ordinary cinematographic works” in the expert reports and court decisions and benefit from copyright protection.

When we conclude that a certain commercial benefits from copyright protection, the execution of agreements and rights’ management with regards to such commercial shall be crucial. The agreements between the parties or makers of a commercial should be executed in line with the main principles of the Law. However, in many cases, the “Service Provision” agreements signed between advertising agencies and their clients are not executed in conformity with the Law; thus, the rights of the parties could be damaged as a result of such deficiencies.

Av. Beril Çelebi Cem