What is Copyright Infringement for Photographers and Painters, and How Can it be Proven?

Entrance

Artworks are original creations reflecting the creativity and effort of their creators. Photographers and painters, in particular, are among the professional groups most in need of protection against the risk of unauthorized use of their works. The ease of sharing brought about by the digital age allows a photograph or painting to be shared with thousands of people in seconds. However, this ease also brings with it the problem of copyright infringement. This article will examine the concept of copyright infringement for photographers and painters, how to prove this infringement, and the legal measures that can be taken against unauthorized use, in detail with case studies, within the framework of Intellectual and Industrial Property Law.

1. The Concept of Copyright and the Protection of Works of Art

1.1. What is Copyright?

Copyright encompasses all financial and moral rights of the creator of a work. According to the Law on Intellectual and Artistic Works No. 5846 (FSEK):

Moral Rights: The right to credit the author, to protect the integrity of the work, and to decide on the initial publication format of the work.
Financial Rights: The rights to reproduce, distribute, adapt, and perform the work.

Important: Copyright for photographs and images arises the moment the work is created in its original form. Registration is not mandatory for protection; however, it facilitates proof.

1.2. Legal Classification of Photographs and Paintings as Works of Art

According to Article 4 of the Law on Intellectual and Artistic Works, photographs and paintings, which are considered works of fine art, are protected by copyright as long as they are original.

Simple, technical photographs don't always qualify as works of art.
Creative composition, original lighting, or a particular perspective enhance the quality of the artwork.

2. What is Copyright Infringement?

Copyright infringement is the reproduction, distribution, adaptation, or commercial use of a work without the permission of the copyright holder.

2.1. Examples of Copyright Infringement for Photographers

A magazine publishing a photograph taken by a photographer without permission.
Cropping a photo or removing its watermark before sharing it on social media.
The unlicensed use of a photograph in a commercial campaign.

2.2. Examples of Copyright Infringement by Artists

Unauthorized reproduction and sale of a painting.
The use of the painting image in advertising posters.
The unauthorized sale of a digital copy of the painting as an NFT.

3. Copyright Infringement with Case Studies

Incident 1 – Unauthorized Use of Photograph in Advertising

A photographer named "FK" took a photoshoot for a tourism company. However, the photo was also used in a different advertising campaign without the company's permission.
This constitutes a violation of financial rights because the photo was reproduced and disseminated. Furthermore, the failure to credit the photographer's name constitutes a violation of moral rights.

Event 2 – Copying the Artist's Work

A painting by an artist named "MT" has been illegally sold as a poster in an online store.
This constitutes a violation of both the right to reproduction and the right to distribute the work. The artist is entitled to claim both monetary and non-monetary compensation.

4. Proving Copyright Infringement

In copyright infringement cases, the most critical issue is proving that the work belongs to you and that it was used without your permission.

4.1. Proving that the Work Belongs to You

Notarized record.
Registration with the General Directorate of Copyrights, Ministry of Culture and Tourism.
Registration with electronic signature or timestamp.
Raw files and sketches from the filming or production phase.

4.2. Proving the Violation

Obtain a screenshot of the infringing website through a notary public.
Obtaining invoices/product samples from the stores where the sale was made.
Saving social media posts with a timestamp.

Example: The work of a photographer named "ND" was used without permission on a blog site. The official document, prepared through a notary, became the strongest evidence in the lawsuit filed.

5. Legal Remedies

5.1. Sending a Warning Letter

The first step is to send a formal notice to the infringing party through a notary public. The notice gives them a deadline to cease the infringement and remove the artwork.

5.2. Legal Cases

Lawsuits that can be filed according to the FSEK (Turkish Copyright Law):

Prohibition of Rape Case – Stopping the Ongoing Violation.
A Violation of Violation Case – Remediation of the violation (e.g., deletion of an image from the internet).
Financial Damages Lawsuit – Compensation for Loss of Copyright Income.
Claim for Moral Damages – Protection of the Author's Reputation.
Seizure and Destruction Case – Destruction of illegally reproduced products.

5.3. Criminal Cases

According to Article 71 of the Law on Intellectual and Artistic Works, unauthorized use is punishable by imprisonment for 1 to 5 years or a judicial fine.

6. Copyright Protection in the Digital Environment

In the internet age, digital copyright infringements are common, especially for photographers and artists.

Adding a watermark.
Sharing in low resolution.
Using DRM technologies.
Requesting that access be blocked due to unauthorized sharing (Law No. 5651).

7. Preventive Measures

Entering into written contracts with publishers and clients.
Clearly state the terms and conditions for sharing on social media.
Maintaining an archive for each artwork.
Actively utilize complaint mechanisms against copyright infringement on online sales and sharing platforms.

Conclusion

For photographers and artists, copyright is not only an economic right but also the protection of their creativity and labor. Preventive measures such as registration, notarization, and contracts should be used to prevent infringement; and in case of infringement, the process of detection, warning, and litigation should be initiated swiftly. Protecting copyrights is essential for the advancement of art and culture. Every artist should protect their work and effectively utilize their legal rights.

Gamze Akbulut, Law Faculty Student

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