Photography and Copyright Law | Use of Photos on the Internet | Trademark Lawyer in Izmir | Efes Law Firm
In this study, we will specifically address legislation and court decisions regarding the use of photographs found on the internet. First and foremost, it is crucial to warn that using a photograph obtained from the internet can lead to numerous violations under the Law on Intellectual and Artistic Works, the Turkish Penal Code, and the Law on the Protection of Personal Data; you may face administrative and criminal sanctions. In other words, photographs and visual content obtained through search engines or third-party websites cannot be used without the consent of the content's owner. Contrary to common practice, visual content obtained from Google Images is not a database of images that you can use as you wish.
Legal Regulations
Law on Intellectual and Artistic Works (FSEK)
Under the Law on Intellectual and Artistic Works (FSEK), photographs can be considered either "works of science and literature" (Article 2/3) or "works of fine art" (Article 4/5), depending on the elements they contain. Portraits of individuals are regulated separately under Article 86. Under FSEK, the right to utilize a work that has not yet been made public, in any form or style, belongs exclusively to the author (Article 20). Furthermore, penalties for tortious acts committed in relation to a work are regulated under Article 71 of the FSEK.
Personal Data Protection Law (KVKK)
When examining a photograph obtained from the internet under the Personal Data Protection Law (KVKK), an investigation must be conducted in parallel with other legislation, taking into account the specific elements of the case. In any case, processing publicly available visual content containing personal data for purposes other than its intended public disclosure may result in substantial administrative fines under Article 18 of the KVKK.
Turkish Penal Code (TCK)
Considering the personal data contained in visual content obtained via the internet, Article 134 and subsequent articles of the Turkish Penal Code concern the privacy of private life and personal data. giving or obtaining unlawfully The possibility of crimes being committed should be taken into consideration.
Court Decisions
SUPREME COURT OF APPEALS, 11TH CIVIL CHAMBER, CASE NO. 2007/12297, DECISION NO. 2009/1332, DATE: 6.2.2009
...However, the plaintiff also claimed that even if the photograph in question did not qualify as a work of art, its unauthorized use from the plaintiff's website and its subsequent reproduction and publication on the defendant's website and in magazine issues constituted unfair competition. (Law No. 5846) FSEK.According to Articles 84/1 and 3 of the Turkish Civil Code, anyone who records a photograph that is not a work of art onto a device used for recording purposes, or who rightfully reproduces or distributes it for commercial purposes, may prevent a third party from reproducing or publishing the same photograph using the same device. The protection under this article applies to anyone who records a photograph onto a device used for recording purposes, or who rightfully reproduces or distributes it for commercial purposes; the protection is limited to recording and reproduction. In the specific dispute, the plaintiff claims that she took the photograph of her daughter and published and reproduced it on her website, “www.yasamdersleri.com,” where she gives lessons on pixel art. The defendant argues that the photograph has become public, that it must be a work of art in order to claim copyright compensation, and that the photograph was obtained from “www.google.com” without a copyright notice. Therefore, the fact that the plaintiff recorded the photograph and published it on her website is not disputed between the parties. Indeed, in the decision dated July 11, 2006, and numbered 941/204, issued by the Istanbul 2nd Intellectual and Industrial Property Rights Court, which heard the moral damages lawsuit filed against the defendant by the plaintiff's daughter whose photograph was taken, it was stated that the photograph of the plaintiff's daughter was on the plaintiff's website, and the plaintiff also stated that her daughter could be heard as a witness if necessary. The court's opinion that the plaintiff's ownership rights over the photograph could not be proven, based on Article 86 of the Law No. 5846 on Intellectual and Artistic Works, which is not applicable in this case, without evaluating the dispute between the parties in terms of Article 84 of the same Law, is incorrect.
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