Pursuant to the Law No. 5846 on Intellectual and Artistic Works (“LIAW”), neighboring rights refer to the rights held by artists who interpret, present, perform, sing, play, or otherwise execute a work in an original manner, provided that they do not infringe the moral and economic rights of the author and do so with the author’s permission, as well as the rights of phonogram producers who first fix such performances or other sounds as a performance product, and the rights of radio and television organizations.
The Regulation on Neighboring Rights to the Author’s Rights (“Regulation”) further elaborates on this definition by stipulating that the exclusive rights belong to natural and legal persons who, without harming the author’s rights and with their consent, perform a work in an original manner or participate in its performance, fix a performance or sounds for the first time, or publish them, and that these rights include fixing the performance, reproducing it, renting it, broadcasting it by any wired or wireless means, and exploiting it through public performance.
Performing artists are authorized to grant permission for the transfer of the rights they hold, and these rights may be asserted against anyone, including the author. Pursuant to the LIAW, if a work is performed by multiple artists and can be divided into separate parts, each artist is considered the owner of the part they have created. However, if the work constitutes an indivisible whole, the performing artists may act jointly to protect their rights or may authorize one of them to act on their behalf. In this context, if any one of the artists refuses to grant permission without a valid reason, the others may apply to the court to have the necessary permission obtained by judicial order.
However, pursuant to Article 80/1A-6 of the LIAW, exceptionally, when a performance is carried out by an orchestra, choir, or theater group, it is sufficient for permission to be granted solely by the conductor in the case
of an orchestra or choir, and solely by the director in the case of a theater group. According to Tekinalp, this provision was adopted to clearly designate the person authorized to grant permission in such ensembles. It may also be noted that this regulation aims to prevent potential conflicts of interest among the members of the group in works performed collectively.
Moreover, the permission granted to the conductor and the theater director does not mean that the economic benefits of the related economic rights belong entirely to these individuals. In such cases, the economic rights remain with the group, and in the doctrine, the conductor and director are often compared to a partner in an ordinary partnership with authority to represent the partnership.
It should be emphasized that obtaining permission from only a single person does not affect the status of the other performers as “performing artists.” In the event of any violation of their moral rights, their rights to seek injunctive relief and compensation remain reserved; moreover, any remuneration obtained in respect of the economic rights must be distributed among the performing artists in accordance with the principles of equity.
In light of all the explanations above, although the LIAW provides as a practical measure that the conductor of an orchestra or choir and the director of a theater group may grant permission on behalf of the ensemble, thus allowing permission to be obtained from a single person, it should be noted that the authority of the performing artists to dispose of their economic and moral rights remains intact. Accordingly, in such multiple performances, it is more appropriate to obtain consent from each performing artist individually to prevent potential objections based on copyright infringement.