Few games are built entirely in-house. Studios hire external programmers for a port, an art house for characters and environments, a composer for the score, a QA vendor for certification, a co-development partner for a whole platform version. Each of those relationships produces something the studio must own outright, and each is governed by two bodies of Turkish law that do not automatically deliver that result: the work contract (eser sözleşmesi) of Articles 470 to 486 of the Turkish Code of Obligations No. 6098 (TBK), which allocates risk, payment, acceptance and defects, and the Law on Intellectual and Artistic Works No. 5846 (FSEK), which decides who owns the code, art and music and which insists on a written assignment listing each right. This article explains how to classify the contract, why the employer rule of FSEK Article 18 does not reach an external developer, how to draft an assignment that survives Articles 48, 50 and 52, how milestones and acceptance work under Articles 474 to 479, what the studio can do about delay and defects, how the two-year limitation runs, and the terms that experienced studios add: source-code escrow, penalty clauses that merchants cannot have reduced, third-party asset warranties, data protection and the risk of disguised employment. It continues our publishing agreement and user-generated content articles.
Work contract, service contract or mandate?
Article 470 defines the work contract as one in which the contractor undertakes to produce a work and the client to pay a price for it. A contract for a deliverable, a finished build, a set of assets meeting a specification, a localisation package, is a work contract, and the contractor bears the risk of producing the result. A contract for time, a team of three engineers embedded for six months at a day rate, is closer to a service or mandate arrangement in which the provider owes diligence rather than a result, and where the client directs the work daily, the relationship may in substance be employment under Articles 2 and 8 of the Labour Law No. 4857, with the severance, notice and social-security consequences that follow; our employment article covers the test. The classification matters because the remedies differ: only the work contract gives the client the defect remedies of Article 475 and the rescission for anticipated delay of Article 473. Under Article 471 the contractor must perform with loyalty and care, judged by the professional and technical standards of a prudent contractor in the same field; it must produce the work itself or under its own management unless its personal qualities are irrelevant, in which case it may subcontract, and it supplies its own tools and materials unless otherwise agreed. Article 472 makes the contractor liable like a seller for defects in materials it supplies, and requires it to warn the client immediately where the client’s materials, or any other circumstance, endanger the proper or timely completion of the work, failing which it bears the consequences; in a software context this is the duty to flag that the client’s engine version, art pipeline or specification cannot deliver the result.
Ownership: why the assignment must be written and itemised
Computer programs, in whatever form expressed, and their preparatory designs that will produce a program at a later stage, are literary works under Article 2(1) of FSEK; art, music and text are works in their own categories. The author is the natural person who created the work, and Article 18(2) transfers the exercise of economic rights to the employer only for works created by civil servants, employees and workers in the performance of their duties, and to legal persons for their organs; an external developer is neither, so the studio owns nothing it has not been assigned in writing. Article 18(3) says as much for producers and publishers: they may exercise economic rights only under a contract with the author. The assignment itself is governed by Articles 48 to 52. Article 48 allows the author to transfer economic rights, limited or unlimited as to time, place and content, for or without consideration, or to grant a licence to use them, but its third paragraph makes void any such disposal of a work not yet created or still to be completed. Article 50 rescues the commissioning contract: undertakings to make such disposals are valid even before the work exists, and undertakings covering all of an author’s future works or a category of them may be terminated by either party on one year’s notice. The standard structure is therefore an undertaking to assign in the development agreement plus an actual assignment executed on delivery of each milestone, or a clause that operates as an assignment at the moment each part of the work comes into existence, with the milestone acceptance documents confirming it. Article 52 requires contracts and dispositions concerning economic rights to be in writing and to specify each right separately; a clause assigning “all rights” is not enough, and Turkish practice lists the rights of adaptation (Article 21), reproduction (22), distribution (23), performance (24) and communication to the public by signs, sounds or images including digital transmission (25), for all territories, for the full term of protection, for all present and future media. Article 49 adds that the assignee may transfer the right onward only with the author’s written consent, so the contract must include that consent if the studio wants to license the game to a publisher or transfer the IP to a parent company, as discussed in transferring IP to a foreign parent. Where several contributors create an inseparable whole, Article 10 makes them joint authors governed by partnership rules, with the rights exercised by the person who brought them together unless otherwise agreed; a co-development agreement should say who that person is.
Moral rights and third-party materials
Moral rights cannot be assigned. Article 14 leaves the decision to disclose the work to the author, Article 15 the decision whether it is published under the author’s name, and Article 16 prohibits abbreviations, additions or other changes without the author’s permission, while allowing the changes technically necessary for adaptation, reproduction or publication; under Article 16(3) the author may prohibit changes that damage honour or reputation or distort the work’s character even after giving unconditional written consent, and a waiver of that right is void. A development agreement therefore obtains the author’s consent to the studio modifying, integrating and exploiting the work without attribution, accepting that the core protection of Article 16(3) remains. Third-party materials are the other trap: engines, middleware, fonts, stock assets, open-source libraries and AI-generated content each come with their own licence, and the contractor must warrant that everything delivered is original or properly licensed for the studio’s intended exploitation, with a list of third-party components and their licences as a deliverable. Copyleft licences that would require release of the studio’s own code, and stock-asset licences that exclude use in a game, are the usual findings when a publisher’s due diligence reviews the list.
Milestones, payment and acceptance
The Code’s default rules fit milestone-based development well. Under Article 479 the price falls due on delivery, and where delivery in parts and pricing by parts are agreed, each part’s price falls due on its delivery, which is the legal basis for milestone payments. Article 480 governs a fixed price: the contractor must deliver at that price even if the work required more effort, but may ask the court to adapt the contract or rescind it where unforeseeable circumstances make performance at the price impossible or excessively difficult, and the client owes the full price even if the work proved cheaper. Article 481 applies where the price was not fixed or only estimated, and Article 482 allows the client to rescind where an estimate is being exceeded excessively without its fault. Acceptance is the contractor’s protection and the client’s risk. Under Article 474 the client must inspect the work after delivery as soon as the ordinary course of business allows and notify defects within a reasonable time; either party may have an expert examine the work at its own cost. Under Article 477 the contractor is released from liability once the work is accepted expressly or tacitly, except for defects it deliberately concealed and that could not be found on a proper inspection; a client that neglects to inspect and notify is deemed to have accepted, and defects appearing later must be notified without delay. A development agreement should therefore define acceptance testing in detail, set a review period per milestone, provide that payment of a milestone is not acceptance, and preserve claims for latent defects such as performance issues that only appear at scale or on certification. Article 476 removes the client’s defect remedies where the defect results from its own instructions given despite the contractor’s express warning, which is why contractors document their objections in writing.
Delay, defects and limitation
Article 473 gives the client two anticipatory remedies: where the contractor fails to start on time, delays the work contrary to the contract or falls so far behind that it clearly cannot finish by the agreed date, the client may rescind without waiting for the delivery date; and where it is clear during production that the work will be defective or non-conforming through the contractor’s fault, the client may set a period for the contractor to remedy the problem, failing which it may have the work repaired or continued by a third party at the contractor’s risk and cost. After delivery, Article 475 gives the client three alternative rights where the contractor is liable for a defect: rescission where the work is so defective that the client cannot use it or cannot in fairness be expected to accept it, a price reduction proportionate to the defect while keeping the work, or free repair at the contractor’s cost unless disproportionately expensive, in each case with damages under the general rules. Article 478 sets the limitation period at two years from delivery for works other than immovable structures, extended to twenty years where the contractor is grossly at fault. The client may also terminate for convenience under Article 484 by paying for the work done and compensating the contractor’s full loss, which agreements usually replace with a defined termination fee, and Article 486 ends a contract concluded for the contractor’s personal qualities on its death or its loss, without fault, of the ability to complete the work, with the client taking and paying for usable completed parts. Penalty clauses under Articles 179 to 182 back these up, and Article 22 of the Commercial Code prevents a merchant debtor from asking the court to reduce an excessive penalty under Article 182(3), so a penalty agreed between two companies cannot be reduced as excessive, although the general limits of Article 27 of the Code of Obligations (contracts contrary to morality or public order) still apply, for instance to a penalty that would ruin the debtor economically; studios use them for missed milestones and for breach of confidentiality and IP undertakings.
Escrow, data and the contractor’s people
Three further terms belong in every serious outsourcing agreement. Source-code and asset escrow, or at least continuous delivery into the studio’s own repositories, protects against the contractor’s insolvency or a dispute that freezes the relationship, since Article 484 compensation is little comfort without the code. Data protection follows where the contractor touches player data or telemetry: it is a data processor under the Personal Data Protection Law No. 6698, needs a processing agreement and, if abroad, a transfer basis, as described in our KVKK for game studios article. Finally, the contractor’s own employees and subcontractors must have assigned their rights to the contractor under Article 18(2) or written agreements, so the assignment to the studio has something to convey; the agreement should warrant this and give the studio the right to see the underlying contracts, and should prohibit subcontracting without consent where the contractor’s personal qualities were the reason for the engagement (Article 471(3)).
Our contractor says the code is ours because we paid for it. Is that right?
Not under Turkish law. Payment does not transfer copyright; FSEK Article 18(2) covers employees, not contractors, and Articles 48 and 52 require a written assignment specifying each economic right. Without it the studio has at most an implied licence whose scope will be disputed. Sign an assignment now, for the work already delivered, and fix the template.
Can we assign rights in work not yet created?
The disposal itself is void under Article 48(3), but the undertaking to assign is valid under Article 50, so the agreement contains an undertaking and the assignment is completed on delivery of each milestone, or the clause is drafted to operate as each part comes into existence and is confirmed in the acceptance certificate.
The build passed acceptance and crashed at certification two months later. Do we have a claim?
Possibly. Acceptance releases the contractor except for defects deliberately concealed or not discoverable on proper inspection (Article 477(1)); a defect that appears later must be notified without delay (Article 477(3)) and the claim brought within two years of delivery (Article 478). Define acceptance testing to include certification so that the question does not arise.
Related: work for hire · copyright · penalty clause · source-code escrow.
Sources. Turkish Code of Obligations No. 6098 (Articles 179–182, 470–486); Law No. 5846 on Intellectual and Artistic Works (Articles 2, 10, 14–16, 18, 21–25, 48–52); Turkish Commercial Code No. 6102 (Article 22); Labour Law No. 4857 (Articles 2, 8). Statute links open the official Turkish texts on mevzuat.gov.tr.
This article is provided for general information only and does not constitute legal advice. Please seek legal support for an assessment of any specific matter.
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