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COUNTRY CORRESPONDENTS CO-PUBLISHED EDITORIAL Turkey Kenaroğlu Avukatlik Burosu

How to protect your most valuable : publicity and image With millions of images shared online every day, striking a balance between the rights of the individual and freedom of expression is a complex task. Thankfully, various regulations can offer protection in the absence of specific publicity and image rights

Over the past two decades, the Internet the Turkish and Patent Office by the depicted individual; and radio and and social media have transformed recently rejected a trademark application film news and images of daily events. daily habits. While the benefits of these that included the portrait of famous painter Moreover, according to Article 30/I of platforms cannot be underestimated, Frida Kahlo based on Article 6/6. the Copyright Code, images can be used have become significantly during criminal proceedings or for judicial easier to violate and the effects of Copyright Law – unfair competition rules purposes by the courts and other official infringement have become much more The Copyright Code provides various authorities without . Plus, images harmful. As a result, we need a more methods for an individual to protect against may be reproduced and disseminated by effective system for protecting publicity third-party use of their publicity rights public authorities or those under their and image rights in the digital domain. for the purposes of advertising, business instruction without the consent of the or activities of a similar nature. These owner for public safety or judicial purposes. Principal legislation protections extend broadly from the core For instance, a photograph of a suspect may Publicity and image rights have been of an individual’s identity to tangential be published in a newspaper upon the order described by various courts as the rights elements that they may seek to protect of the public prosecutor. over all legal, physical and spiritual assets (eg, their name, nickname, former name, that an individual would find worthy of pseudonym, voice, image or portrait). protection and cannot be disseminated According to Articles 84 and 86 of the Pursuant to Article 24 of the Civil Law: without their consent. Thus, such rights Copyright Code, a sign, picture, sound, “Anyone whose personal right is attacked can be defined under the umbrella term painting, portrait or photograph of a person unlawfully might claim protection ‘’ and various regulations cannot be used by a third party without against those who attack.” For example, can be applied to help protect these. the individual’s consent or within 10 years using an image for commercial or of their death. Rights holders and their purposes other than to give Trademark Law successors are entitled to oppose any third or receive information is deemed to be an Although the Industrial Code (6769) party that uses, transmits, duplicates or infringement of the right of personality. In makes no specific provision for publicity disseminates a sign, picture or sound, other words, any use of an image without rights, its definition of ‘’ includes or any kind of photograph or portrait, the consent of the person whose right of names. Therefore, most celebrities register which is not deemed to be an artwork for personality has been violated, a superior their names as trademarks to prevent commercial gain. private or public interest, or an authority potential misuse. However, a trademark The legal basis for this stems from granted by law is against the law. Article must have a distinctive function in order to the unfair competition rules, which are 24 provides the following four reasons as be registrable. Therefore, while the names, regulated under the Turkish Commercial grounds for lawful use: portraits or other image rights of celebrities Code (6102). Unlike the general rule to • consent of the rights holder; may meet such criteria, those of ordinary benefit from protection based on unfair • an outstanding special benefit; people are less likely to. competition, a copyright infringer does • an outstanding public interest; or Alternatively, Article 6/6 of Industrial not have to be commercially motivated. • exercise of a power granted by the law. Property Code prescribes that a trademark For instance, the mother of a famous actor application that contains a personal name, cannot use her son’s childhood videos Even when consent has been given by trade name, photograph, copyright or without his consent. the person in question, it must be within the any other IP right will be rejected upon However, the Copyright Code provides scope of Article 23 of the Civil Code – that objection of the genuine rights holder. exceptions for images of individuals is, it must be in accordance with the law Thus, individuals can oppose and prevent who play a role in Turkish political or and must not be against morality. Consent the registration of a sign that refers to popular culture; images of parades, official cannot be given to disclose all of a person’s their publicity and image rights. Indeed, ceremonies or general meetings attended secrets or the most intimate matters

124 WINTER 2021 www.WorldTrademarkReview.com regarding their family life, nor should Yasemin Kenaroğlu Gökçe Dağdaş disclosures be detrimental to their , Partner Associate reputation or . Such disclosures will be considered unlawful even where [email protected] [email protected] consent has been given; however, the judge Yasemin Kenaroğlu, founding partner at Gökçe Dagdas is registered as an attorney may decrease the amount of compensation Kenaroğlu Avukatlik Burosu, is registered at law at the Istanbul Bar Association and or refuse to award compensation at all. as an attorney at law at the Istanbul Bar as a trademark attorney before the Turkish Lawsuits other than compensation cases (eg, Association and as a trademark attorney Patent and Trademark Office. Working at for suspension, prevention or detection) are before the Turkish Patent and Trademark Kenaroğlu Avukatlik Burosu since 2017, unaffected by the issue of consent and can Office. Ms Kenaroğlu has been working her practice focuses on IP litigation and be initiated by the rights holder regardless. on IP-related litigation, enforcement, enforcement, particularly trademarks and prosecution and counselling matters since designs. She handles an array of litigation Publicity rights versus freedom of press 2003, leading Kenaroğlu since 2008. matters, including infringement and unfair Another issue that the system faces is the She represents foreign and multinational competition, invalidation and non-use need to balance the individual’s right to companies in a range of fields on cancellation actions before the Turkish with freedom of expression. Although trademark, patent, design, domain name courts, as well as settlement negotiations freedom of the press and and unfair competition-related matters. at the pre-litigation phase. are protected as fundamental rights under the Constitution, they are limited when a party capitalises off the use of someone else’s Remedies for breach of publicity claim financial compensation as no material image or off content that is detrimental to According to Article 25 of the Civil Law and damage has been caused by the disclosure. their honour, reputation and dignity. Atricle 84 of the Copyright Code on unfair Rights holders are also entitled to file In a court action filed against a competition, rights holders may request the an invalidation action based on Article newspaper, a top Turkish football club determination, prevention and suspension 6/6 of the Industrial Property Code if their sought following the distribution of an infringement of personality rights – name, photograph or likeness has been of posters bearing a photograph of one mere on the part of the infringer registered as a trademark by a third party of its footballers, which had been taken will not be an acceptable excuse for such without their consent. For instance, the during championship celebrations. The actions. Rights holders may also request Turkish IP Court invalidated the trademark court accepted the claim and ordered the the correction of an infringing statement, registration for CHAPLIN and the newspaper to pay material damages for with the correction made public. invalidation decision was approved by the the unauthorised use of the footballer’s In addition, according to Article 25/3 of Court of Appeals based on image rights. picture, even though it had been taken the Civil Law, a rights holder can file suit on by the newspaper itself, on the grounds the grounds of acting without a proxy and Criminal offences that such images are protected under the request that any earnings gained from the Pursuant to Article 134 of the Criminal Copyright Code and unfair competition infringement be paid to them, as well as Law, anyone who violates the privacy rules when it comes to commercial use. On claiming any monetary and non-pecuniary of an individual will be sentenced to appeal, the court decided that although damages, if applicable. imprisonment of between one and three the press enjoys freedom of reporting and To receive pecuniary damages, the years. If the individual’s privacy has been freedom of expression, and the public has claimant must have suffered a financial violated through the recording of images the freedom to be informed and receive loss. For instance, if the wedding pictures or sounds, the penalty will be increased by news, media outlets should pay the utmost of a celebrity are published without their up to three years. Anyone who unlawfully attention and act in line with the principle consent, they could demand compensation discloses images or sounds of a person will of proportionality so as not to harm the of their material loss based on the fee that be sentenced to imprisonment of between personal rights or commercial values they would have been paid if they had a two and five years. The same penalty will of others. The court stated that when or based on the actual profit of the be imposed in the event that such images evaluating this proportionality, issues infringer – whichever is higher. or sounds are broadcast in the media. such as the right of the public to receive If such financial damage cannot be All kinds of information regarding an news, the news value of the information proven, no compensation will be awarded. identified or identifiable natural person presented, whether the news is up to date For instance, if a statement is made or are considered to be and and contains accurate information, and a sensational news article is published any person who unlawfully gives, spreads the method for obtaining such information regarding a person’s private life (which or seizes personal data will be sentenced should all be considered. In this case, the falls under family privacy and cannot be to imprisonment of between two and four image was found to be infringing because disclosed through the media even with the years according to Article 17 of the Law on the poster was used for commercial individual’s consent), the individual can the Protection of Personal Data and Article purposes rather than to inform the public. claim non-pecuniary damages but cannot 135 of the . www.WorldTrademarkReview.com WINTER 2021 125