Mr. Yannis Karalis (“Plaintiff”), a Greek composer and lyrist who is the copyright owner of the “Eclipse” song, which was released in 1997, brought an infringement action against the famous Turkish singer and lyrist, Ms. Sezen Aksu, as well as against other lyrists and several music record and production companies (“Defendants”) due to their infringing use of the cited song in 2003. The Musical Work Owner's Society of Turkey (“MESAM”) was also informed and involved in the lawsuit.
The plaintiff asked the Court to order an injunction against the continuing infringing acts of defendants, and also for material and moral damages in the amount of € 60.000 and € 900.000, respectively. The plaintiff additionally requested the payment of a specific amount, which is calculated as 3 times of the amount that could have been demanded if the right had been granted by a contract, according to Article 68 of Law on Intellectual and Artistic Works No. 5846 (“LIAW”). The defendants requested dismissal of these claims by alleging that (i) all permissions were obtained from the collecting society that the plaintiff was a member of in Greece at that time, and (ii) that the right to bring such action lapsed due to the time limitation.
Following lengthy proceedings, the First Instance Court partially accepted the plaintiff's case by ordering the payment of € 10.000 in material, and € 5.000 in moral damages. Both parties appealed the decision. Thereafter, the Court of Cassation (“CoC”) reversed the decision by explaining that the First Instance Court did not evaluate the compensation claims of the plaintiff as to Article 68 of the LIAW, and merely ruled for material and moral damages. The CoC also indicated that payment of the moral damages shall be made in local currency under the provisions of the Turkish Code of Obligations No. 818 (“TCO”), unless decided by the parties to the contrary.
The First Instance Court complied with this reversal decision. However, this time, the Court stated in its decision that the “Plaintiff's compensation claim as to Article 68 of the Law shall be accepted and 10.000 € shall be paid to compensate the plaintiff's material damages in this direction (…) by taking into account the reversal decision it has also been decided that the defendants shall pay TRY 15.000 for the plaintiff's moral damages since the TCO requires this payment to be made in local currency.”
We are of the opinion that such assessment, where the Court simply included material damages in the specific compensation claim under Article 68, while those are two separate remedies stipulated under the LIAW, is inappropriate. The Court also failed to explain how the moral damages have been calculated, and declined to pay TRY 15.000 as € 5.000 had been ruled before.
Under normal circumstances, the legal proceedings in such copyright infringement cases are expected to take around four years. However, this case, where the court obtained five expert reports, and held more than 20 hearings, it has been ongoing for more than 18 years, and may even continue for the next couple of years if the parties do not settle.
This case file, despite all of these lengthy court proceedings, is important, as the Court handed down its decision by declaring the infringement and imposing material and moral damages against these highly known actors in the music industry in Turkey, and it is encouraging for the right holders in the music sector and, especially, for foreign right holders to claim copyright ownership in Turkey.
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