Legal Journal

Photograph and Copyright Law

Photographs, which identifies our day to day life, surroundings, objects, environment, movement; shortly, every image that’s of people and the nature, are one of the artistic works subject to Intellectual Rights. Although it is very talked about, the law covers it, is not very popular. Usually there are many violation of rights when using a photograph.

Law on Intellectual and Artistic Works (“the Law”) identifies two types of photographs. For a photograph to be deemed as a “work” it has to bear “the characteristic of its author”. But that’s not enough, for a photograph to be protected as a “work” under the Law, it also has to have an aesthetic value (Art.4/5). However, the Law acknowledges some specific photographs as work even though they are not qualified as work such as “All kinds of technical and scientific photographic works”(Art.2/3).

Besides these two categories, the Law regulates “portraits” specifically. According to article 86 of the Law, the portraits can be made public 10 years after the imaged person’s death.

In a person’s photograph, there are at least two sides, the one is the photographer and the other one is the person whose photograph is being taken. That’s why a photograph shall be issue of at least two people’s rights.
Since, a photograph shall be accepted as work if it has aesthetic value as stated above or protected by the articles 4/5 or 86, the photographer will be the author of the work and he or she can exercise the rights the Law provides to the author. In consequence, all the copyrights of the photograph shall belong to the photographer.

However, even though the photographer has the copyrights, that does not mean the photographer may use the photograph as his or her wish. A person’s photograph is considered his or her “personal data” both by the article 135 of Turkish Criminal Code (“TCC”) and the article 3/3 of Turkish Personal Data Protection Law (“PDPL”). Also, a person’s photograph is a part of his or her “personal life”. Therefore, a photograph can’t be disclosed to the public or copied without the permission of the person it includes. Otherwise the one who publishes it, even if it’s the photographer, shall violate the articles 135-137 of TCC which regulates the recording of personal data or article 134 which regulates the secrecy of private life. TCC regulates imprisonment changing from 1 to 3 years for violating those articles.

Those who want to use, copy, process or digitally transmit a photograph, shall protect themselves by obtaining permission from the person in the photograph and the photographer (copyright owner) without considering whether a photograph has aesthetic value. Even if it’s not protected by the Law, using a photograph, besides the criminal consequences stated above, might be considered as tortious act against the photographer and/or the person in the photograph and/or using it in trade may bring responsibility of compensation.

Especially those who are involved in the traffic of photograph usage in social media, which has been growing tremendously, should be very careful.
Another reminder for social media is; you are advised to examine the policy of the platform you’re uploading your photographs to, such as Facebook, Instagram etc. With the permissions you give on those platforms involuntarily, you may be allowing them to use, copy or process your photographs which are part of your “personal life” and “personal data”…

Av. Haluk İnanıcı