ARTICLE
20 April 2020

Ancillary Use Of Sculptures In Advertising Does Not Constitute Copyright Infringement In Brazil

GA
Global Advertising Lawyers Alliance (GALA)
Contributor
With firms representing more than 90 countries, each GALA member has the local expertise and experience in advertising, marketing and promotion law that will help your campaign achieve its objectives, and navigate the legal minefield successfully. GALA is a uniquely sensitive global resource whose members maintain frequent contact with each other to maximize the effectiveness of their collaborative efforts for their shared clients. GALA provides the premier worldwide resource to advertisers and agencies seeking solutions to problems involving the complex legal issues affecting today's marketplace.
The artist Zé Andrade filed a lawsuit against Itáu Unibanco and an advertising agency for copyright infringement, due to the unauthorized use of six of his miniature figures made of clay
Brazil Media, Telecoms, IT, Entertainment
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The artist Zé Andrade filed a lawsuit against Itáu Unibanco and an advertising agency for copyright infringement, due to the unauthorized use of six of his miniature figures made of clay – among them, Einstein, Nietzsche, Woody Allen, and Monet - in advertisement films.

In the first instance, the defendants were jointly and severally condemned to pay compensation for material damages and R$ 30.000,00 (approximately US$ 6,000.00) for moral damages. Moreover, the judge also determined the inclusion of Zé Andrade's name on the advertisement films as the sculptures' creator. Afterwards, the Rio de Janeiro State Court determined the exclusion of the creator's name of the films and established the compensation in the total amount of R$ 80.000,00 (approximately US$ 16,000.00).

Finally, the case was analyzed by the Brazilian Superior Court of Justice (STJ), which had a different understanding of the matter. The case's rapporteur, Justice Raul Araújo, affirmed that the film only reproduced small portions of the statues, which were simply part of the films' set, and that their exhibition did not cause any damage to the work itself.

Justice Araújo concluded that the situation is allowed by the Brazilian Copyright Law (Federal Law No. 9,610/1998), taking into account that the exhibition of the sculptures constitutes "small sections", with an ancillary nature in relation to the main work, and that it did not cause unjustified losses to the creator. Thus, STJ sustained the advertising agency's appeal, dismissing the lawsuit.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

ARTICLE
20 April 2020

Ancillary Use Of Sculptures In Advertising Does Not Constitute Copyright Infringement In Brazil

Brazil Media, Telecoms, IT, Entertainment
Contributor
With firms representing more than 90 countries, each GALA member has the local expertise and experience in advertising, marketing and promotion law that will help your campaign achieve its objectives, and navigate the legal minefield successfully. GALA is a uniquely sensitive global resource whose members maintain frequent contact with each other to maximize the effectiveness of their collaborative efforts for their shared clients. GALA provides the premier worldwide resource to advertisers and agencies seeking solutions to problems involving the complex legal issues affecting today's marketplace.
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