Newsletter – September Edition 28 set 2018

Newsletter – September Edition

INTELLECTUAL PROPERTY

Dear Clients,

In August, 2018 the Third Panel of the Superior Tribunal of Justice (“STJ”, the highest court for non-constitutional matters) ruled that the use of parody in an advertising campaign does not violate the copyrights of the original work.

The original lawsuit was filed by Universal Music against Hortigil Hortifrutis S.A. after the defendant published an internet and billboard advertising, in which the opening verse of the song “Girl from Ipanema” was changed to “Look what a beautiful kale, so graceful”

According to Universal Music, the campaign would violate its copyrights due to the unauthorized use of the song “Girl from Ipanema”, whose property rights belong to it, considering that it would not configure a parody under the terms of Law 9.610 of February 19, 1998 (“Copyright Law”), in view of its commercial purpose.

In the court decision, the first instance judge dismissed the case, recognizing that the campaign was a parody in accordance with the Copyright Law, since the modification of the verse was comic and did not cause dishonor, depreciation or discredit to the author of the original song. The decision also emphasized that there was no reproduction of the original work nor use of the musical melody in the advertisement.

Universal Music then appealed, but the Rio de Janeiro Court of Appeals dismissed the appeal by stressing the comic character of the alteration of the word “thing” for the word “kale” and the lack of depreciation or discredit to the author of the original song.

The plaintiff then filed a special appeal to STJ, alleging the thesis that the exception set forth by the Copyright Law regarding parodies would not apply when there was commercial purpose.

In the decision, the judge stated that the requirement that the creation has a non-profit or non-commercial purpose, as alleged by Universal Music, is not set forth by the Copyright Law, which only requires that the parody does not constitute a true reproduction of the original work or has a deprecatory or offensive connotation, implying discredit to the work or its author.

The judge also stated that preventing the use of parodies in advertising campaigns because of its commercial nature would deny the inventive character of an advertising campaigns, inhibiting the freedom of creation and censuring humor.

The decision also emphasized that the campaign, published in printed and digital format, did not reproduce Tom Jobim and Vinícius de Moraes’ melody, limiting itself to alter one of the verses of the original song in a satirical way.

Finally, the judge highlighted that the limit that separates a parody from a copyright infringement is tenuous and strictly related to the factual circumstances of each case, involving the subjectivism of the judge in assessing the presence of the requirements of humor, distinctiveness and lack of denigrating nature, as set forth by the Copyright Law.

In case of any doubts about this subject, please do not hesitate to contact us.

 

DATA PROTECTION

Dear Sirs.,

The 25th Civil Court of Belo Horizonte granted an interlocutory relief to determine the supply of data of three users by WhatsApp and the telephone companies to which the users are registered.

The suit was filed by the state deputy and candidate for re-election, Luiz Sávio de Souza Cruz, against WhatsApp and the telephone companies Oi  Móvel S/A e Surf Telecom, after being victim of fake news shared via WhatsApp. In the complaint, the deputy requested an interlocutory relief to identify three users who started the dissemination of the fake news.

According to the deputy, the origin of the messages was identified by the fact that the three users were the first to share them, since  the messages did not have the “forward sign”, which help users to identify if a text has been forwarded or originally created.

Judge Eduardo Veloso Lago granted the request for interlocutory relief to identify the owners of the telephones and WhatsApp accounts, ordering WhatsApp to inform the registered data and IP numbers of the users and the telephone companies, Oi Móvel S/A and Surf Telecom, to inform the data of the cell phone owners.

In the decision, the judge stated that it is imperative to combat fake news, and recalled that the inviolability of privacy and data confidentiality is not absolute, and may be disapplied in certain cases, especially for the purpose of investigating unlawful acts or in criminal investigations, being necessary a judicial order to request the breach of secrecy, in accordance with the Federal Constitution and the Brazilian Internet Bill of Rights.

The decision also set a daily fine of 250.00 brazilian reais, limited to 5,000.00 brazilian reais in case of non-compliance with the interlocutory relief.

In case of any doubts about this subject, please do not hesitate to contact us.

 

KEY CONTACT:

Paula Mena Barreto
Partner
T: +55 21 3262-3028
E: paula.menabarreto@cmalaw.com

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