Rights Over a Person’s Image and Photograph

1. Introduction

The scope of the rights individuals hold over their own image is a legal question that comes up frequently in a changing world. Today, it is ordinary, and increasingly taken for granted, that a person’s image may be recorded and shared anywhere, at any moment and for any reason. Many people publicly share their photographs on social media platforms and even consent, expressly or implicitly, to their photographs being shared by people they know.

On the other hand, the persons depicted in such images may not consent to their being shared, or may wish to withdraw the consent they have given. In this context, the limits of the rights and protection attached to an image become important. When Müşfik Kenter says in the film Sevmek Zamanı (A Time to Love), “What is between me and your picture is none of your business. Your picture is not you, after all…”, is he right in legal terms? Where do the rights over our own image begin and where do they end?

Furthermore, not only the person depicted but also the person who creates the image will hold rights over it. Understanding this ownership is important in order to determine the relationship between the rights of the person depicted and those of the creator of the image.

In this article, we explain in detail the legal position of a person’s rights over their own image, and in the narrower sense over their picture and photograph, primarily from the perspective of intellectual property law.

2. The Legal Status of Photographs in General

The rights over a photograph of a person can first be divided into two groups: “the rights of the person photographed” and “the rights of the person who takes/creates the photograph”. In addition to this distinction based on the subject of the photograph, there are two separate areas of protection relating to a photograph: “intellectual property rights” and “personality rights”. However, Law No. 5846 on Intellectual and Artistic Works (the “Law”, “LIAW”), which regulates intellectual property rights, contains provisions on both areas of protection.

3. Rights of the Person Who Takes / Creates the Photograph

For the person who takes/creates a photograph to benefit from intellectual property rights, the photograph must qualify as a work. Photographs that do not qualify as works may, under certain conditions, benefit from the rules of unfair competition law. Under Turkish law, for a product to qualify as a work, it must be embodied in one of the categories of works set out in the law and must bear the characteristics of its author (originality). Within the framework of the LIAW, the categories of works under which a photograph may qualify are essentially “photographic works of a technical or scientific nature which have no aesthetic value” (Art. 2/3), “oil paintings and watercolours, pictures” (Art. 4/1) and “photographic works and slides” (Art. 4/5).

– The purpose of photographic works without aesthetic value is to teach or explain a particular scientific or technical subject by depicting it on a surface or in three-dimensional form. Legal scholars summarise these as pictures, photographs, plans, projects, models and similar items of a scientific and technical nature that lack aesthetic quality¹. What they have in common is that they lack “aesthetic” value and are often devoted to an instructive purpose.

– Oil paintings and watercolours, pictures and photographic works and slides, on the other hand, fall within the Law’s category of works of fine art. Accordingly, these works must have aesthetic value, that is, they must be aesthetic in nature (LIAW Art. 4/1). It is therefore clear that in a photographic work of this kind, the photographer’s individual character must be assessed, for example through the techniques relating to pose and shading during a model’s photo shoot, the angle of the photograph and various interventions such as Photoshop, and that only then can the photograph qualify as a “work of fine art”. Nor is it required that the work be created “for an aesthetic purpose”, or that its author be an “artist”, for instance a professional photographer.²

In practice, whether a photograph falls within one of the categories of works listed in the LIAW and meets the “originality” requirement is assessed by court-appointed experts. For example, in a case concerning the unauthorised online publication of photographs taken during a fashion magazine shoot, the assessment of whether they qualify as works will be made by experts. A finding by the experts that the photographs are not works does not in itself mean that no right has been infringed³, because photographs that do not qualify as works may benefit from other forms of legal protection. Indeed, in this example an assessment may be made under “unfair competition”, and an infringement may be found even though the photographs in question are not works.

Photographs that do not qualify as works are “ordinary” photographs that lack the character of a work. There is no intellectual creation in such photographs. However, rather than leaving them entirely unprotected, the legislator has provided protection based on unfair competition. What is protected under unfair competition is the photographer’s ownership of rights over the photograph.

The unfair competition protection for photographs and pictures referred to here concerns reproduction and publication for commercial purposes. For example, a person who uses without permission the photographs that a nature photographer has reproduced and published for commercial purposes commits an infringement under unfair competition rules, even if that person is not a merchant.

As an aside, the legal nature of such photographs and pictures shared on social media is worth considering. On platforms such as Twitter and Instagram, “verified” accounts can earn income based on engagement and view counts, depending also on their number of followers. For example, if a video recorded by an ordinary person during a public uproar and uploaded to social media is published by a news agency from its verified account without any permission, and income is earned as a result, can we speak of an infringement? In our view, the answer is yes: this is a clear case of unfair competition that occurs almost every day.

For such infringements under unfair competition, the relevant provisions of the Turkish Commercial Code and the Turkish Code of Obligations apply, and where the conditions are met, remedies such as a declaration of infringement, an injunction against the infringement, removal of its effects, and claims for pecuniary and non-pecuniary damages may be pursued.

4. Rights of the Person Photographed / Depicted

The rights of the person photographed/depicted are protected as personality rights. This protection is set out in the first paragraph of Article 86 of the LIAW as follows:

“Even if they do not qualify as works, pictures and portraits may not be exhibited or otherwise made available to the public without the consent of the person depicted or, if the person depicted has died, of the persons listed in the first paragraph of Article 19, until 10 years have passed since the death of the person depicted.”

This provision is a specific manifestation of Article 24 of the Turkish Civil Code and Article 58 of the Turkish Code of Obligations.

The personality rights of a person over their own image have been summarised most accurately and concisely by the Court of Cassation as follows:

“Personality rights are strictly personal, non-transferable and non-waivable rights; they may be listed as the rights to life and to physical and mental integrity, freedom of thought and work, honour, dignity, and the rights over one’s name and picture, and they are not limited to these. Pictures and portraits are objects that reflect a person’s outward appearance in a way that makes it possible to recognise that person. A person holds rights over their outward appearance. The personality right over one’s picture is protected not only under civil law but also by specific provisions in Law No. 5846 on Intellectual and Artistic Works and Press Law No. 5680. The general rule is that a person’s picture may not be published without their permission. The cases in which a person’s picture may be published without permission are set out in Article 86 of the Law on Intellectual and Artistic Works.”⁴

To benefit from this protection of personality rights, the person depicted must first not have consented to the image being made available to the public. In the context of a “work”, making available to the public can be described as the author leaving their own private sphere, personal circle and area of control. With respect to an “image”, the provision uses the expression “exhibited or otherwise”. In this respect, making an image available to the public can be described as “reproducing a person’s outward appearance in a way that allows them to be identified”. Since what is protected is a “personality right”, the image must also be the “outward appearance” of a natural person.

According to the prevailing view among legal scholars and various court decisions, the consent of persons who appear in a photograph only as a detail, for example people who happen to enter the frame behind the main subject of a photograph taken on a street, is not required, and their personality rights therefore cannot be said to be infringed. It should be noted, however, that these decisions and views generally concern examples of “commercial” use of the image in question⁵. In our view too, the consent of persons who appear only as a detail in the background of a photograph, and who do not form its subject, should not be required. Nevertheless, each case must be assessed on its own facts: a third person who appears only as a detail but in a comic or iconic way may, for instance, eclipse the purpose of the photograph and become the talk of the day. In that case, an infringement of personality rights may arise even if no commercial income is earned.

Consent to an image being made available to the public is a declaration of intent and takes effect once it reaches the other party. Consent may be given expressly or implicitly. Express consent is often given in writing. Where consent is implied, attention must be paid to its scope. For this reason, especially where an image is made available to the public by third parties, it must be assessed separately in each case whether the limits of the consent given by the person depicted have been exceeded. For example, a news website sharing on Twitter, as a news item, a photograph that a famous actor briefly posted to their Instagram story and then removed may not in itself constitute an infringement. However, if the photograph is obscene in nature and it is clear that it was shared by mistake, an infringement of personality rights may be found. Likewise, there is no personality rights issue where a devoted fan of an artist opens a “fan page” and shares photographs from the artist’s concerts. By contrast, a person who downloads photographs shared on someone’s personal account to their own computer and publishes them on their own profile with declarations of love cannot be said to be acting lawfully.

The main exceptions to the consent requirement are listed in subparagraphs of LIAW Art. 86/2. Accordingly, consent is not required for “pictures of persons who play a role in the political and social life of the country”, “pictures showing parades, official ceremonies or public meetings in which the persons depicted participated” and “pictures and radio and film news relating to current events”. A photograph of a politician taken during their morning run, people appearing in a video recording of the crowd at Anıtkabir during the centenary celebrations, and a video recorded by a passer-by who witnesses a traffic accident fall within this scope. Here too, “the consent must not be exceeded”; it is clear, for example, that a video recorded by a witness to a traffic accident which focuses on the face of a seriously injured person lying on the road will not fall within this exception.

Even in these exceptional cases, an infringement of personality rights is possible. Therefore, the fact that a situation falls within one of the exceptions in LIAW Art. 86/2 does not in itself mean that it is lawful. In daily life, such situations frequently arise in the context of commercial use. As mentioned above, as a rule, no infringement of personality rights or requirement of consent can be asserted for persons who are not the main element of a photograph and appear only as a detail in the background. However, if, for example, the image of a woman photographed while walking affectionately with her children on the street is used in a bank’s advertisements, an infringement may be found despite the existence of an exception. Indeed, there are court decisions to this effect. Along the same lines, posts of this kind by a “verified” social media account, such as footage of a child recorded on the metro because they were found amusing and which received hundreds of thousands of interactions, may constitute an infringement of personality rights. However, where a person has themselves placed their image in a commercial context, for example a video they shared from their own verified account and in which they personally appear, and someone else uses it, again for commercial purposes, the protection that comes into play will often be unfair competition rather than personality rights.

It should also be noted that the scope of protection of personality rights must be regarded as broader than that of rights under unfair competition. Indeed, for an image that is not a work, for example a cheerful photograph of a family admiring a view, the protection of the photographer’s rights will end where the persons photographed have not consented to the image being made available to the public.

Where there is an infringement of personality rights, the provisions of the Turkish Code of Obligations on tortious acts apply by reference from the LIAW. Accordingly, the person whose personality rights have been infringed may claim non-pecuniary damages and ancillary relief.

Furthermore, under the provisions of the LIAW, a person whose personality rights have been infringed may, to the extent the circumstances allow, avail themselves of remedies such as prevention of the infringement, a declaration of unlawfulness, damages and a right of reply, even if they consented to the image being made available to the public or the case falls within one of the exceptions above. Finally, again by reference from the same article, the offence of violation of the privacy of private life under the Turkish Penal Code may also be committed. Depending on the circumstances of the case, the offences of unlawful recording of personal data and unlawful disclosure or acquisition of personal data may of course also be established.

5. Conclusion

• For a photograph to benefit from protection as a work under intellectual property law, it must fall within one of the categories of works listed in the LIAW and meet the originality requirement. In practice, whether photographs and images qualify as works is determined by court-appointed experts.

• If the photograph qualifies as a work, the person who takes/creates it benefits from the broad protection of intellectual property law. For photographs that do not qualify as works, unfair competition protection under the Turkish Code of Obligations and the Turkish Commercial Code will apply.

• A person who wishes to take legal action against the unauthorised use by others of an image they shared on social media will likewise rely on the unfair competition provisions.

• The rights of persons who are photographed or depicted are protected as personality rights. The key distinction in the protection of personality rights turns on express consent.

• Whether express consent exists and whether any exception applies must be assessed separately in each case according to its circumstances.

Av. Enes Duran

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[1] Şafak Parlak BÖRÜ; Fotoğraf Üzerindeki Haklar (Doktora Tezi), Ankara, 2013; pp. 46-47.

[2] K. Emre GÖKYAYLA; Telif Hakkı ve Telif Hakkının Devri Sözleşmesi, Ankara, 2001; p. 92.

[3] For an example, see Hamdi YASAMAN; Fikrî ve Sınaî Mülkiyet Hukuku, Vol. 2, Istanbul, 2012; p. 233 et seq.

[4] Court of Cassation, Assembly of Civil Chambers, Docket No. 2001/4-926, Decision No. 2001/742, dated 17.10.2001.

[5] For the views and decisions, see BÖRÜ; pp. 357-358.