On the Court of Cassation’s “My Sweet Orange Tree” Decision
The legal nature of translations represents an important issue under copyright law. Indeed, a translation is often not simply a technical transfer between languages; particularly in the context of literary works, it constitutes the product of intensive intellectual labor whereby the translator reconstructs the work by drawing on the culture of the target language, its expressive possibilities, and the translator’s own interpretation. In this respect, a translation may in certain circumstances even acquire the character of a form of “rewriting".
Indeed, Article 6 of the Law on Intellectual and Artistic Works (“LIAW”) No. 5846 explicitly lists translations as an example of adaptations. According to the said article, “intellectual and artistic products created by benefiting from another work but that are not independent of such work” are regarded as adaptations. The same provision further emphasizes that only those adaptations which do not prejudice the rights of the author of the original work and which bear the personal characteristics of the adaptor shall be deemed works. Within this framework, while the utilization of a work requires, in principle, the authorization of the author of the original work, the resulting adaptation must also be the product of a certain degree of creative effort in order to qualify as a work in its own right.
In this context, a recent decision of the Court of Cassation that has been reflected in the press contains noteworthy and precedent-setting evaluations regarding the criteria for protecting the intellectual contribution made by a translator to a translated work. The dispute arose under the following circumstances:: the work titled “Meu Pé de Laranja Lima” by the Brazilian author José Mauro de Vasconcelos was translated into Turkish by the translator Aydın Emeç under the title “Şeker Portakalı (Sugar Orange)”, and the work became widely known under this title. For many years, the publishing house Can Yayınları published 130 editions of the work using Aydın Emeç’s translation. However, although the publisher later republished the work with a different translator, it continued to use the title “Şeker Portakalı”, which had already become established in the public sphere. Ali Selim Emeç, the son and heir of the translator Aydın Emeç, filed a compensation claim based on copyrights, arguing against the continued use of the title that had been originally created by his father. Although both the Court of First Instance and the Regional Court of Appeal dismissed the claim on the grounds that the title of the work did not constitute an independent creative contribution, the decision of the 11th Civil Chamber of the Court of Cassation, which has been widely reported in the press, set aside the lower courts’ judgments and remitted the case to the court of first instance for a reassessment, holding that the issue of compensation should be examined.
In the decision of the Court of Cassation, it was stated that the title Şeker Portakalı does not constitute a literal translation of the original Portuguese title. The expression “Meu Pé de Laranja Lima” could, in terms of its literal meaning, be rendered as “My Sweet Orange Tree”. However, the translator did not simply translate the text into Turkish. By creating the title Şeker Portakalı, which reflects the spirit of the work and has no counterpart in the original, he made a distinct personal creative contribution.
This assessment confirms that translations produced through creative effort constitute works that are distinct from the original work and therefore merit protection under Article 6 of LIAW No. 5846. Moreover, the decision is also consistent with Article 83[1] of the same Law, which provides that titles of works may receive separate protection if they possess a distinctive character.
When title choices in literary translations are examined through concrete examples, the importance of cultural and creative preferences from the perspective of copyright law becomes more clearly apparent. For example, the work titled Pride and Prejudice by Jane Austen has been published as “Gurur ve Önyargı (Pride and Prejudice)”, in the Hasan Âli Yücel Classics series of Türkiye İş Bankası Kültür Yayınları, and as “Aşk ve Gurur (Love and Pride)” in the translation published by Can Yayınları. In this respect, while the first example adopts a literal translation of the source title, the translation published by Can Yayınları prefers a title that reflects the spirit of the work by taking into consideration the novel’s content and emotional tone.
Although some news reports have treated it as comparable to the case of the title Şeker Portakalı, the fact that the novel “The Catcher in the Rye” by J. D. Salinger was known in Turkish for many years under the title “Gönülçelen (Heart-capturer)” rather than “Çavdar Tarlasında Çocuklar (Children in the Rye Field)” actually arises from the fact that the first translation of the work, made by Adnan Benk, was not translated from the original English text but from the French translation titled “L’Attrape-Cœurs”, which literally means “heart-catcher” or “heart-snatcher”.
Some translated expressions may also go beyond the source work and acquire literary value by themselves. The soliloquy “To be or not to be” in the play Hamlet by William Shakespeare was translated by Sabahattin Eyüboğlu as “Var olmak mı, yok olmak mı, bütün sorun bu! (To exist or not to exist, that is the whole question!)” in a manner relatively close to its original wording. By contrast, the translation by Can Yücel “Bir ihtimal daha var, o da ölmek mi dersin? (There is another possibility; do you think it is to die?)” has gone beyond the confines of the play and has become an iconic expression that is frequently cited in different contexts. Such translations clearly demonstrate that the translator’s creativity adds an additional value to the work.
A similar situation is also observed in the translations of the Harry Potter series in Türkiye by Sevin Okyay and Kutlukhan Kutlu. The equivalents produced for the fictional terms in the source work—horcrux – hortkuluk, howler – çığırtkan, dementor – ruh emici, boggart – böcürt, pensieve – düşünseli, auror – seherbaz—constitute not merely acts of translation but also the construction of a new literary universe in the target language.
In conclusion, the Şeker Portakalı decision of the 11th Civil Chamber of the Court of Cassation presents an important approach regarding how creative contribution in translated works should be evaluated within the scope of intellectual property law. The decision clearly emphasizes that elements constituting the title of a work, such as the title itself, may also be protected by copyright if they contain originality. In this respect, the said case law has a guiding character in the law of translated works both for academic discussions and for practice.