In a Turkish startup the code, designs, brand and know-how are created by three kinds of people: founders who wrote the first version before the company existed, employees who build it afterwards, and freelancers who fill the gaps. Turkish law treats each of them differently, and the difference decides whether the company actually owns what it is selling and what investors are paying for. For employees, Article 18 of the Law on Intellectual and Artistic Works No. 5846 (FSEK) and Articles 113 to 122 of the Industrial Property Law No. 6769 (SMK) give the company a statutory position on works and inventions created in the course of employment. For founders and freelancers there is no such default: without a written assignment that lists the rights transferred, the company owns nothing, and FSEK Article 48 makes an outright transfer of future works void. This article explains the three regimes, the two statutory traps, and the paperwork that closes the gap; it is the most common finding in Turkish venture due diligence and the easiest one to fix early.
Copyright: the author is always a human, and the company only uses the rights
FSEK starts from a rule that surprises founders trained on US “work made for hire”: the author (eser sahibi) is the person who creates the work (Article 1/B(b)), and under settled doctrine only a natural person can create a work bearing its author’s individual character; that never changes. Software is a “work” under Article 2(1), including preparatory design material. What a company can hold are the economic rights (reproduction, distribution, adaptation, communication to the public) and the authority to exercise them; the moral rights (disclosure, attribution, integrity, Articles 14 to 16) stay with the author, although their exercise can be regulated by contract.
For employees, Article 18(2) does the heavy lifting: unless the parties’ contract or the nature of the work indicates otherwise, the rights in works created by employees while performing their duties are exercised by the employer. The word is “exercised” (kullanılır), not “owned”; the prevailing reading is that the employer acquires the authority to exercise the economic rights by operation of law, for the duration of protection, without a separate assignment. Two limits matter. The work must be created while performing the employee’s duties: a backend engineer’s side project built at weekends on a personal laptop is outside Article 18 even if it is useful to the company. And the parties may have agreed otherwise: an employment contract that says “the employee retains rights in tools he develops” displaces the default.
Patents and utility models: the employee-invention procedure
SMK Articles 113 to 122 govern inventions by employees. An invention made in the course of the employee’s duties, or largely on the basis of the enterprise’s experience and work, is a service invention (hizmet buluşu); everything else is a free invention (Article 113). The employee must notify a service invention to the employer in writing without delay, describing the technical problem, the solution and how it was achieved (Article 114). The employer then has four months from receipt to claim the invention in full or in part, in writing; if it does nothing, the invention becomes free (Article 115(1)). A full claim transfers all rights to the employer on receipt of the claim notice (Article 115(2)), but the employee is entitled to reasonable compensation (Article 115(6)), calculated under the tariff and arbitration rules in the Regulation on Employee Inventions, and the employer must file the first patent application unless business interests justify not filing (Article 116). Students and unpaid interns serving without a fixed term are treated as employees for this purpose (Article 113(3)).
The trap here is the calendar. Startups rarely run the notification and claim procedure, so a technically patentable feature built by an engineer in 2024 may, on paper, have become that engineer’s free invention four months after he first described it in a Slack thread. The cure is a standing internal procedure: a one-page invention disclosure form, a named person who receives it, and a diary entry for the four-month deadline.
Founders: the pre-incorporation gap and the void assignment
Everything a founder created before the company was registered belongs to the founder personally; Article 18 does not apply because there was no employment. The transfer has to be made by contract, and FSEK is strict about form. Article 52 requires contracts and dispositions concerning economic rights to be in writing and to list the rights that are their subject individually. A one-line “the founder assigns all IP to the company” fails the second test; the assignment must name reproduction, adaptation, distribution, communication to the public and the other economic rights being transferred. Article 48 allows transfers to be limited or unlimited in time, place and content, and allows the grant of licences instead of transfers.
The second, less known trap is Article 48(3): a disposition that relates to a work not yet created, or not yet completed, is void. A founder cannot validly assign in 2026 the code he will write in 2027. What he can do is undertake to assign it: under Article 50 a promise (taahhüt) to make a future disposition is valid even before the work exists, although a promise covering all of an author’s future works, or all future works of a given kind, can be terminated by either party with effect one year after notice. The practical consequence is a two-layer document: an assignment of everything already created, with a schedule, plus an undertaking to assign future works, backed by a present-day authority to exercise the rights and a mechanism for periodic confirmatory assignments. Investors’ counsel look for exactly this structure; a single “assigns all present and future IP” clause is what they flag.
Freelancers, agencies and contractors
A contractor is not an employee, so Article 18(2) does not help, and a contractor’s invention is not a service invention. Ownership depends entirely on the written contract, subject to the same Articles 48, 50 and 52. Most Turkish freelance and agency contracts either say nothing about IP or contain a licence rather than a transfer; a design agency that retains the rights in your logo can lawfully object to your rebrand. When the contractor is a company, its own employees’ works pass to it under Article 18 and it can then assign to you; when the contractor is an individual, the assignment must come from that individual. Foreign contractors add a governing-law question, but the safe approach is a Turkish-law assignment satisfying Article 52 regardless of where the contractor sits.
Trade marks, domain names and data
Trade marks under SMK belong to whoever filed them. Founders routinely register the brand in their own name before incorporation; the mark must then be assigned to the company by a written contract that is valid only if notarised, and the assignment must be recorded at the Turkish Patent and Trademark Office to be effective against good-faith third parties (SMK Article 148(4)–(5)); until then the company is trading under a mark it does not own. Domain names and social media handles are contractual accounts with registrars and platforms, not IP rights, but the company should be the registrant of record. Datasets and databases have a sui generis protection under FSEK Additional Article 8 for the maker who made a substantial investment; the “maker” of a founder’s pre-incorporation dataset is the founder, and it should be assigned alongside the code.
The document set that closes the gap
Four documents, in order of urgency. A founder IP assignment and undertaking, signed by each founder personally, with a schedule of existing works, an itemised list of economic rights per Article 52, an Article 50 undertaking for future works, a moral-rights exercise clause and a power to sign confirmatory assignments. An employee IP clause in every employment contract that confirms the Article 18 default, extends it by express agreement to works created outside strict duties but with company resources, regulates moral rights, and sets out the SMK notification and claim procedure with a compensation formula. A contractor IP assignment template in which the transfer, not a licence, is the default. And a brand-transfer file recording the trade mark assignments and domain transfers. None of these is expensive; all of them are cheaper than re-papering under time pressure in a data room. The tax and cross-border consequences of moving the resulting IP to a foreign parent are a separate question, which we cover in Transferring IP to a foreign parent.
Does the company need to pay the founder for the assignment?
Not under FSEK; an assignment can be with or without consideration (Article 48(1)). Consideration is usually recited as the founder’s shares or a nominal sum. Tax and transfer-pricing consequences arise mainly when the assignment is to a foreign company or is made at a value far from arm’s length.
Is a clause in the articles of association enough?
No. The articles bind the shareholders as shareholders; an IP assignment is a disposition of the founder’s personal rights and needs a contract that satisfies Article 52. Put the undertaking in the shareholders’ agreement if you like, but sign the assignment as a separate instrument.
What about code generated with AI tools?
FSEK protects works that bear the author’s individual character, and the author is a natural person. Output produced with substantial human selection and arrangement is generally treated as the human’s work; output with minimal human input may attract no copyright at all. Record the human contribution, and make sure the assignment covers “materials” as well as “works” so that unprotected output still passes contractually.
Related: source code escrow · preparing for due diligence · SHA anatomy.
Sources. Law on Intellectual and Artistic Works No. 5846 (Articles 1/B, 2, 14–16, 18, 48, 50, 52, Additional Article 8); Industrial Property Law No. 6769 (Articles 113–122, 148). 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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