Moral Rights Arising From Intellectual and Artistic Works

Zeynep Erkan, LL.M.

What are the moral rights that arise from intellectual and artistic works? How these moral rights are protected and can they be transferred by the owner?

1. Moral Rights Arising From Intellectual and Artistic Works 

Article 13/1 of Law No. 5846 on Intellectual and Artistic Works states, "The financial and moral interests of the owners of intellectual and artistic works are protected under this law." This provision establishes that creators of works have two types of rights over their works: economic (financial) rights and moral rights.

In legal doctrine, it is argued that moral rights encompass the rights related to the creator's emotional connection with the work, while economic rights encompass the rights related to the creator's financial and economic interests in the work. These moral rights cannot be transferred through legal and contractual processes for financial gain, but the right to use these rights can be transferred. The General Assembly of the Court of Cassation also accepts that the right to use moral rights can be transferred. The transfer of these rights is typically accomplished through licensing agreements.

Moral rights specified in the Law on Intellectual and Artistic Works (FSEK) are as follows:

2. Authorization for Public Presentation

According to Article 14 of the FSEK, "The decision of whether a work should be made available to the public, the timing of publication, and the manner of publication are exclusively determined by the work's creator." This authorization covers both making the work available to the public and the means of promoting it. Making a work available to the public results in its disclosure. The crucial criterion is that the work is made available to an indefinite and unlimited number of people.

For there to be talk of the creator's authorization to present the work to the public, the law requires two more conditions: the work must not have been disclosed partially or completely or, in its essential aspects, not disclosed to the public in any form.

The creator may provide written authorization for the work to be presented to the public or for the manner of publication. However, even with this consent, the manner of making the work available to the public or the manner of publication cannot damage the honor and reputation of the creator. Otherwise, the creator can prohibit the presentation or publication of the work. Contracts indicating the waiver of this prohibition power are rendered null and void with finality.

3. Right to be Identified as the Creator

The creator has the right to disclose the work under their real name or a pseudonym. If the creator wishes, they can disclose the work anonymously, but in this case, they cannot benefit from the principles of ownership of works stated in Article 11 of the FSEK.

It is obligatory to mention the name of the original creator in copies of fine art works and in reproductions or versions of the work.

4. Prohibition of Unauthorized Alterations to the Work

Article 16 of the FSEK prohibits alterations to the work without the creator's permission. This prohibition can relate to the work itself or the creator's name. The exceptions to the rule that permission from the creator is required are listed in the second paragraph of the same article: a) someone can have the right to use the creator's rights and grant permission, b) the right to use these rights must be granted with the creator's permission, c) the alteration must be technically necessary.

Even in the presence of such permission, any alteration that damages the honor and reputation of the creator or disrupts the nature and characteristics of the work can be prohibited by the creator. Contractual waivers of this prohibition are rendered null and void.

5. Rights of the Creator Against Possessors and Owners

Article 17 of the FSEK regulates three aspects:

5.1. Right of Access to the Work: The purpose of this right is to allow creators of fine art works to access their older works, benefiting from and drawing inspiration from them in creating new works.

5.2. Prohibition of Damaging, Destroying, or Causing Harm for the Creator: Owners of a painting, sculpture, or an aesthetically valuable architectural work cannot damage, destroy, or violate the financial and moral rights of the creator.

5.3. Temporary Possession of the Work: In the case of a unique and original work, the creator can request the return of the work to be used in exhibitions and activities covering all periods of the creator's work, provided that the necessary protection conditions are met.

Moral rights stemming from ownership of the work cannot be transferred, and they cannot be subject to dispositions made upon death. The transfer of the right to use moral rights is further regulated in Article 19 of the FSEK. Since moral rights are not part of the estate, the right to use them can be transferred to the individuals mentioned in Article 19. These individuals are, in order: the executor of the will; if not appointed, the surviving spouse, children, and legal heirs; parents and siblings. The transfer of the right to use moral rights does not require acceptance of the inheritance.

Furthermore, moral rights cannot be subject to pledges, compulsory execution, or detention.

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