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Sources of law
Right of publicity
Is the right of publicity recognised?
Brazilian law contains no specific provisions for right of publicity. However, the Constitution considers as fundamental rights an individual’s image, life, privacy and intimacy. Brazil also has provisions set out in different laws designed to protect various aspects of an individual’s image and personality, such as:
- trademark: it is possible to register a trademark for a person’s name, signature, nickname and image, conditional on his or her consent in case the application is made in the name of third parties; and
- data protection: Brazil has recently passed a bill to protect an individual’s data from public disclosure and or misuse.
Principal legal sources
What are the principal legal sources for the right of publicity?
The principal legal sources for protecting the right of publicity are constitutional, civil, trademark and data protection laws.
How is the right enforced? Which courts have jurisdiction?
Normally, such rights are enforced through civil courts. Such issues can be further examined by the Superior Court of Justice (relating to proceedings’ matters) or Supreme Court (when it involves constitutional matters). In addition, CONAR, a self-regulatory institution designed to rule over the advertising industry, decides on cases involving its members, and consumers in general. Its decisions are, in most cases, obeyed and accepted in Brazilian courts.
Other relevant rights
Are there other rights or laws that provide a claim based on use of a person’s name, picture, likeness or identifying characteristics?
Apart from the Constitution, intellectual property and copyright law, trademark criminal and civil law are applied directly or subsidiarily.
Existence of right
What aspects of a person’s identity are protectable under the right of publicity?
Unauthorised use of an individual’s name, signature, nickname, image, life, privacy and intimacy, may result in the right of compensation for damages as a consequence of any violation.
Trademark law foresees protection against the unauthorised use of a name, signature, nickname and image of an individual.
Data protection law gives an individual the right to control his or her data, determining whether or not his or her personal data is used.
Do individuals need to commercialise their identity to have a protectable right of publicity?
Commercialisation of identity is not necessary to establish the right of protection of an individual’s image, privacy and intimacy.
May a foreign citizen protect a right of publicity under the law of your jurisdiction?
As such rights are protected by the Constitution, the requirement that the person lives in Brazil should apply, as specified in the major law.
Is registration or public notice required or permitted for protection of the right? If so, what is the procedure and what are the fees for registration or public notice?
Registration is not a prerequisite for right enforcement. Nevertheless, when a specific form of registration exists for a given right (trademark, copywrite, etc), such a registration helps whenever enforcement is necessary. As regards film, registration before the National Cinema Association (ANCINE) is mandatory for showing in Brazil.
Protection after death
Is the right protected after the individual’s death? For how long? Must the right have been exercised while the individual was alive?
Moral personal right is protected after death, with no time limit. Patrimonial right depends on the type of support.
Ownership of right
Can the right be transferred? In what circumstances?
Patrimonial right can be transferred.
Can the right be licensed? In what circumstances?
Patrimonial right can be licensed.
If the right is sold or licensed, who may sue for infringement?
In case of a licence, both the licensor and the registered licensee can enforce against infringement. If sold, such a right can be enforced by the new owner.
If post-mortem rights are recognised, are they limited to natural heirs or can they be enforced under a contract by an assignee or left to an entity?
Post-mortem rights can be enforced by natural heirs, an assignee or entity who receives such rights.
Are there any actions that rights owners should take to ensure their rights are fully protected?
An individual should be vigilant and monitor his or her rights.
What constitutes infringement of the right?
Any type of unauthorised use constitutes an infringement.
Are certain formats of intellectual property excluded from claims based on the right of publicity? What is the legal basis of the exclusions?
News in general is excluded from claims based on the right of publicity. Biographies and documentaries were, until recently, included in the right of publicity according to the Constitution. However, the Supreme Court excluded biographies and documentaries alike from the protection of publicity right, since the constitutional law guarantees freedom of speech.
Infringement claim requirements
Is knowledge or intent to violate the right necessary for a finding of infringement?
Neither knowledge nor intent to violate are necessary for finding infringement, even though it may affect the level of damages available.
Liability of media
Does liability extend to media publishing content created by an advertiser and website operators publishing posts by third parties? Does republishing or retweeting or other social media propagation of existing content give rise to liability?
The act of publishing content created by an advertiser does not give cause to liability. However, in the case of website operators and or the retweeting or other social media propagation of third-party posts that may give cause to liability, is special, if the website operators receive a court order to that effect and fail to act.
What remedies are available to an owner of the right of publicity against an infringer? Are monetary damages available?
Injunctions are available to prevent or cease further infringement. Such injunctions may even provide penalties for failure to comply with a court order, and such a provision can become definitive in a trial. Monetary damages are available.
Is there a time limit for seeking remedies?
The statute of limitations in connection to damages is five years from the date in which the owner of the infringed right became aware of the violation.
Are attorneys’ fees and costs available? In what circumstances?
Brazilian law foresees the awarding of fees and costs to the other party’s attorney, except reimbursement of legal fees. Alternatively, reimbursement of incurred legal expenses, such as court fees, court experts, etc, is usually awarded to the party that wins most of the claims filed.
Are punitive damages available? If so, under what conditions?
Punitive damages are available. These are usually monetary damages arbitrated by the court.
Is preliminary relief available? If so, what preliminary measures are available and under what conditions?
Preliminary relief is available in the form of an injunction, provided that the following two conditions are met:
- the existence of evidence of rights (fumus boni iuris); and
- the risk of continued harm or risk that a delay in the decision will result in the failure to apply justice (periculum in mora).
What are the measures of damages?
All listed measures may be taken into consideration to calculate damages.
Significant case law
What significant judgments have recently been awarded for infringement of the right?
Three significant judgments regarding infringement of right concern the following cases:
- João José Cury v Abril Comunicações SA: the Superior Court of Appeals confirmed the first-instance decision that ordered Abril Comunicações (a publishing company) to pay 3,000 reais in compensation to Mr Cury in view of what the Court called: ‘Their abusive exercise of the right of freedom of speech,’ for referring to Mr Cury in a derogatory manner in an article.
- Rafael Novaes da Silveira v Espaço Restaurante, Shows & Eventos Ltda: Espaço Restaurante was ordered to cease the unauthorised use of Mr Silveira’s photograph to promote a carnival event. Espaço Restaurante was also ordered to pay Mr Silveira 12,000 reais compensation for damages caused to his reputation, despite the fact that Mr Silveira had posted his photograph on social media himself. The court stated that despite the fact that the photograph can be viewed by the general public on the internet, Espaço Restaurante failed to obtain Mr Silveira’s authorisation for its use by them.
- Marcelo Luis Moreton v Rede Globo and Clinica Atibaia - Tratamento Especializado para Dependentes Químicos e Radar Remoção Especializada: Mr Moreton was interviewed by a significant television network while being admitted to a rehabilitation clinic and was speaking about his experience as a drug addict and the process of rehabilitation. His testimony was used by Globo - with his authorisation - in a documentary series on addiction and part of it (without his image) was used to promote the series. In turn, the rehabilitation clinic, when called to show the viewers their rehabilitation treatment, used Mr Moreton’s testimony, among others, to promote their activities. The court understood that because Mr Moreton had consented to show himself as a drug addict in rehabilitation, there was no reason why he should receive any indemnity in connection with the alleged misuse of his image considering that such use did not cause harm to his reputation and honour.
In what forum are right of publicity infringement proceedings held?
These types of cases can be held in civil or criminal courts, depending on their circumstances. The proceedings are the same as those of a normal suit.
Use of juries
Are disputes decided by a judge or a jury? Are damages determined by a judge or a jury?
Disputes are decided by a judge on the first circuit and by a panel of judges on the second circuit.
How is the choice of applicable law determined?
Typically, the choice of applicable law is determined by the domicile of the infringer, but it can also be determined by the place of the infringement.
Consideration of foreign decisions
To what extent are courts willing to consider, or bound by, the opinions of other national or foreign courts that have handed down decisions in similar cases?
The opinions of other national courts in similar cases can influence the outcome of a particular claim.
What avenues of appeal are available in main proceedings or preliminary injunction proceedings? Under what conditions?
Appeals from decisions of first-circuit courts are directed to the Court of Appeal on both facts and questions of law, and the outcome cannot be anticipated. Appeals from the Court of Appeal’s decisions are sent to the Superior Court of Appeal, which can only deal with matters of law because the re-examination of proof is not permitted.
Average cost and time frame
What is the average cost and time frame for a first-instance decision, for a preliminary injunction, and for appeal proceedings?
The average time frame for a first-circuit decision is two years; appeal proceedings also take about two years. With respect to the time frame for a preliminary injunction, this can be between one to four days. The average cost for a decision is about 165,000 reais for both circuits.