March 24 2015
On September 9 2014 the Court of Appeal reversed the decision that using the song "Happy Birthday" with Turkish lyrics could not be deemed a musical work that involved novelty.(1)
The plaintiff had brought an action before the court asserting that he had written a song called "Happy Birthday" ("Mutlu Yıllar" in Turkish), and that all financial rights in this musical work had been transferred to another plaintiff through a music broadcasting agreement dated July 1 2005. Further, both plaintiffs asserted that the defendants – the director and producer of the film Alone (Issız Adam) – had used the song unlawfully in their film. According to the claims, the defendants had used the song without permission, without indicating the lyricist of the musical work, and had paid no royalties. The plaintiffs demanded material and moral damages.
However, the defendants claimed that the plaintiff was not the lyricist of the song, and that registration at the Musical Work Owners' Society did not give the plaintiff ownership rights. Further, the defendants argued that the song which they had used in the movie Alone could not be characterised as a musical work.
As the plaintiff could not prove that he had obtained the permission of the lyricist of the original song and the person who had translated the lyrics from English into Turkish (and as the date of translation was not clear), the Court of First Instance dismissed the case. The plaintiff appealed.
The Court of Appeal stated that "this song has been anonymously used by society for at least 60 years and the Turkish version of the song is not the original musical work."
The Court of Appeal reviewed the case and decided that the song's original lyrics and melody belonged to a foreign party, and that using the song "Happy Birthday" with Turkish lyrics involved no novelty and therefore could not be considered a musical work within the scope of Article 1/B of the Code of Intellectual Property Rights. As a result, the Court of Appeal rejected the appeal.
The decision is significant given the approach that the Court of Appeal took with respect to novelty in songs and the fact that this song has been commonly used for a long time.
For further information on this topic please contact Yeşim Kumova at Cerrahoğlu Law Firm by telephone (+90 212 355 3000) or email (email@example.com). The Cerrahoğlu Law Firm website can be accessed at www.cerrahoglu.av.tr.
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