It is particularly difficult in Turkish practice to receive an in favour decision for owners of the workson cases regarding copyright infringements. Having said that, being your defendant party is a state entity does not make the situation easier. Accordingly, it is not unexpected that the decision made in the Carmen-Suite case, which has been ongoing since 2008, became finalized in 2021, March.
The Supreme Court made its final decision regarding the copyright infringement lawsuit filed as a result of unauthorized performance of the Carmen-Suite opera piece on 18.03.2021. Consequently, the Court ruled a compensation against the defendant-state entity, based on the unauthorized display of the opera piece and not paying for the usage of sheet music of the work in question. At the same time, it should be noted that this decision also sets an important precedent for the consideration of the use of sheet music without a permission as a separate copyright infringement.
Background of the Case
In the aforementioned case, the plaintiff music production company was the owner of the financial rights for the re-orchestration and arrangement of the parts of Carmen-Suite, with the contract concluded by the composer of the piece. Along with the same contract, the plaintiff also acquired the right to represent the piece in Turkey. The plaintiff (represented by NSN), stated that the piece in question was represented by the defendant state-entity through an orchestra nine times and that the sheet music belonging to the piece were also used without permission. At the same time, it was claimed that if a contract had been made, three times the amount of this contract could be demanded due to the infringement of financial rights that occurred as a result of deliberate and willing commitment of these illegal representations.
Within this scope, the Court was requested to determine that the defendant's actions constituted an infringement on the financial rights arising from the piece and to eliminate the infringement. It was also requested from the Court the payment of the representation fee for each representation of the piece and also for the sheet music rent in each representation. Taking into account the legal representation fees of the piece abroad, the legal sheet music rent fees in Turkey and being that the piece was represented nine times without a contract, a threefold compensation claim was requested within the scope of Article 68 of the Law on Intellectual and Artistic Works (“the Code”).
On the other hand, the defendant state entity denied in its defence the claim that the piece was used nine times. By stating that the piece was represented without the intention of making a profit. The defendant also stated that the amounts requested were very exorbitant and that a lower price was stipulated for the use of the piece in a similar contracts presented as a precedent in the petition. In addition, defendant stated that there were discounts of around 25% -15% on the representation fees and rental fees offered by the plaintiff in similar cases.
In its evaluation, the Court of First Instance found that the opera piece in question was a work of art and that the composer had transferred his financial rights to the plaintiff music company, while at the same time the defendant represented the piece nine times on various dates without permission. The court concluded that a compensation amount of three-fold pursuant to Article 68 of the Code can be claimed for both the representation and sheet music rental fees.
In line with these evaluations, the Court of First Instance decided to accept the case and determined that the actions of the defendant state entity were causing an infringement on the financial rights of the plaintiff music company arising from the work. Additionally, the Court decided that the 103.275 Euro requested by the plaintiff should be collected from the defendant by preventing these violations. However, this decision of the First Instance Court appealed by the defendant's attorney.
The Court of Appeal stated that the contract taken as basis for the compensation amount should not be respected, given that the contract was concluded in 2004 and was only embodied two terms of use. Since the representations in the concrete case took place in 2008 and there were exactly nine representations, the court decided that the contracts did not set an example for each other. In addition, at the point of determining the contracts to be based on in the calculation, even if the subject of the contracts were the same work, it was stated that the importance given to this kind of art by the societies, social perception and values should also be taken into account. Again, another contract, which was a base for the decision, was not accepted as full precedent in terms of content, since it covered a one-time representation as a subject.
The Supreme Court’s Final Decision
Within this framework the appellate court, decided the compensation to be collected from the defendant due to the unauthorized performances and the use of sheet music of the piece. Although the defendant appealed and requested the correction of this decision as well, the Supreme Court made its final decision on 18.03.2021 and upheld the decision.
As a result, The Court has judged to prohibit the infringements of the defendant, to eliminate the result of the infringement, and has awarded in favor of the right holder music company for the compensation considering the three-fold representation and sheet music rent fees.
Authors: Bilge Derinbay, Hande Ülker Pehlivan
Contact: bilge.derinbay@nsn-law.com