Who Inherits Copyright After the Author’s Death? Heirs’ Economic and Moral Rights — Atty. Gizem Gonce

“The author’s death does not mean that copyright comes to an end.”

On the author’s death, a significant part of the economic rights in the work passes to the heirs by inheritance.

First of all, it must be determined which rights the author held.

The main economic rights granted to the author under the FSEK are;

• the right of adaptation,
• the right of reproduction,
• the right of distribution,
• the right of performance,
• the right of communication to the public by means of devices transmitting signs, sounds and/or images.

In addition to these, the FSEK also regulates certain special powers.

Therefore, the fact that third parties may continue to use a work after the author’s death does not mean that they are free to do so in every case.

The heirs may become right holders with respect to the economic rights in the work, and their consent or their assessment as right holders may become important when these rights are exercised.

This needs to be examined under two main headings:

1. Economic rights

Depending on their nature, the economic rights held by the author may pass to the heirs by inheritance.

In this context, for example;

• reproduction of the work,
• its distribution,
• its adaptation,
• its performance,
• its communication to the public in the digital environment

are uses of economic value in respect of which the heirs may be right holders.

If these rights are used by third parties without permission, legal claims such as the removal of the infringement, the prevention of the infringement and compensation may arise, depending on the circumstances of the case.

2. Moral rights

As regards moral rights, the FSEK contains special provisions.

After the author’s death, the law provides for a special system concerning how the powers relating in particular to making the work public, indicating the author’s name and making changes to the work are to be exercised.

Accordingly, the heirs have important powers not only in terms of earning economic income but also in terms of protecting the moral bond between the deceased and the work.

Article 19 of the FSEK is extremely important here.

The law provides for a special system for the exercise of certain moral rights after the author’s death.

Article 19 of the FSEK was also examined in detail in the decision of the Court of Cassation’s Assembly of Civil Chambers, docket no. 2008/11-368, decision no. 2008/393.

According to the Court of Cassation, after the author’s death the persons listed in the law may determine the manner in which certain powers regulated in Articles 14 and 15 of the FSEK are exercised.

For example;

• whether the work will be made public,
• when it will be made public,
• in what form it will be published,
• whether the author’s name will be used

are matters on which it is important to protect the will of the deceased.

The Court of Cassation also accepted that, if these powers are infringed, the persons specified in the law may bring actions for the removal and prevention of the infringement.

“Being an heir is not the same as being able to exercise every moral right in the same way.”

No.

A very important distinction must be made at this point.

A simplistic assessment along the lines that “all rights in the work have passed to the heirs in the same way” should not be made automatically for the heirs upon the author’s death.

The transfer of economic rights and the exercise of moral rights after death are subject to different legal regimes.

In addition, the contracts concluded by the author during their lifetime, transfers of economic rights, licence agreements, publishing agreements, production agreements and other legal transactions must always be examined.

For this reason, looking only at the certificate of inheritance is not sufficient to determine the legal status of a work for the heirs.

The nature of the work, the contracts made by the deceased, whether the rights were previously transferred, the duration of use and the manner of use must be assessed together.

A notable decision of the Court of Cassation: the heirs of Ali Kemal Sunal

Yes.

The decision of the Court of Cassation’s Assembly of Civil Chambers dated 1 December 2022 is an extremely important example of the powers that heirs hold with respect to related rights.

The dispute concerned the cinematographic works in which Ali Kemal Sunal acted and the rights of the Sunal heirs.

The decision held that the related economic rights of a performer may pass to the performer’s heirs upon death and that these rights may be protected independently of the rights of the author or the producer.

This approach is extremely important.

This is because the fact that the producer of a cinematographic work holds rights arising from the work does not mean that the performer who acted in the film automatically loses their own related rights.

The Court of Cassation accepted that, in the dispute at hand, the performer’s economic rights passed to the heirs after death and that certain uses were subject to the heirs’ permission.

Depending on the circumstances of the case, the heirs may have various legal claims.

These include;

• removal of the infringement,
• prevention of the infringement,
• compensation for pecuniary damage,
• compensation for non-pecuniary damage,
• a declaration of unlawful use,
• stopping the unauthorised use,
• claiming the economic-right fees arising from the use

and similar legal remedies that may be available.

However, which claim can be asserted must be assessed separately according to the nature of the infringed right and the relevant provision of the FSEK.

Particularly with regard to moral rights, the capacity in which the heirs act and the scope of the power under which they act must be examined carefully.

In assessing the scope of the heirs’ powers under Article 19 of the FSEK, the Assembly of Civil Chambers of the Court of Cassation also distinguished between the power to determine the manner in which certain moral rights are exercised and the power to exercise certain rights in their own name.

This is one of the issues that requires the most care in practice.

The content of the contract signed by the author during their lifetime must always be examined.

This is because questions such as;

• Which economic right was transferred?
• How long was the transfer period?
• Which forms of use were covered by the contract?
• On what date was the contract due to end?
• Was the contract exclusive?
• Was the right of digital use expressly regulated?

are all important.

The FSEK system contains special provisions on the form and scope of contracts relating to economic rights.

Therefore, the heirs should not act directly on the basis that “our rights have passed to us” without examining the contracts previously signed by the deceased.

First, it must be determined which rights the deceased still held.

Absolutely.

Digitalisation has become one of the most important areas of practice in copyright law.

For example, if a film shot years ago is broadcast on a digital platform today, an old book is put back on sale as an e-book, or a musical work continues to be used on digital platforms, it may not be enough to look only at the contracts from the period when the work was first published.

Whether the new form of use falls within the scope of the contract must be examined separately.

In particular, the fact that the digital media used today were not foreseen at all in older contracts may give rise to significant legal disputes over who holds the rights.

For this reason, it is important for the heirs to monitor regularly the income generated by the deceased’s works and the uses made by third parties.

Yes, depending on the circumstances of the case.

The FSEK regulates the author’s right to prohibit changes being made to the work.

These provisions, which aim to protect the originality of the work and the author’s moral bond with it, continue to be protected to a certain extent after the author’s death.

The case law of the Court of Cassation also accepts that the special system for the protection of moral rights continues after the author’s death.

Accordingly, the heirs’ role is not merely to “collect copyright income”.

In some cases, the heirs may also have to invoke legal protection mechanisms relating to how the deceased’s work is presented, how the author’s name is indicated and how the integrity of the work is preserved.

“Owning the physical copy of a work is not the same as owning the copyright.”

There is a very important distinction here.

Ownership of the physical object in which a work is embodied and ownership of the intellectual property rights are not the same thing.

For example, an oil painting may pass to a person by inheritance. That person may be the owner of the physical painting; however, this alone does not mean that they hold all the intellectual property rights arising from the work.

The Court of Cassation also emphasises that the work must be distinguished from the object in which it is embodied. A person who acquires physical ownership of a work does not acquire all the intellectual property rights belonging to the author merely because they are the owner.

This distinction is of great importance, especially in the inheritance of works of art.

First of all, an inventory should be made of all of the deceased’s works and the contracts connected with them.

For example;

• books and publishing contracts,
• musical works and licence agreements,
• film and television productions,
• photographs and visual works,
• digital broadcasting rights,
• adaptation rights,
• rights of use abroad

should be identified one by one.

Then it should be investigated by whom, in which media and on the basis of which contract the works are being used.

Particularly for works that have been published for many years or have come back into circulation on digital platforms, it should be examined separately whether the current use exceeds the scope of the contract concluded during the deceased’s lifetime.

“Copyright inheritance is not merely an economic inheritance.”

The works an author leaves behind are not merely of economic value.

An artist’s book, a composer’s music, an actor’s performance, a painter’s canvas or a writer’s screenplay is at the same time part of their intellectual and moral legacy.

For this reason, what the heirs need to do after the author’s death is not merely to monitor copyright income.

It is also necessary to monitor unauthorised use of the works, the scope of the contracts, uses in digital media and the integrity of the work.

The Court of Cassation’s decisions, particularly those under Article 19 of the FSEK, show that the intellectual legacy remains under legal protection even after the author’s death.

The decision of the Court of Cassation’s Assembly of Civil Chambers concerning the heirs of Ali Kemal Sunal is also particularly important in showing that related rights may likewise pass to the heirs after death and that use by third parties cannot be considered free in every case.

In conclusion, the author’s death is not the end of the legal protection of the work.

On the contrary, a new legal period begins in which it must be carefully determined which rights have passed to the heirs, which rights may be exercised by which persons, and whether third parties have authority to use the work.

For this reason, where a work protected by copyright passes by inheritance, one must look not only at the certificate of inheritance but also, together, at the provisions of the FSEK, the contracts made by the deceased, the transfers of rights and the current forms of use of the work.

Attorney Gizem Gonce