Google is responsible for taking down from youtube the parody of the song “malandramente”
4 / 06 / 2018
In April, 2018 the 6th Chamber of Civil Law of the Santa Catarina Court of Appeals ruled that the author of the humoristic video entitled “Medonhamente” should be indemnified after Google removed the video from the website “YouTube”, due to the allegation of copyright infringement presented by the representatives of the original song, “Malandramente”.
The matter arose after the parody was taken down by Google from the YouTube website at the request of ONErpm, owner of the patrimonial rights of the original song, after the author of the parody refused to split the revenue earned from the video with the company.
According to the author, the parody had a humoristic content and did not denigrate the image of the artists nor the original work and therefore that there was no copyright violation. Moreover, the withdrawal of the video would have caused patrimonial losses to the author.
Google replied alleging that it acted strictly in accordance to YouTube’s terms of service and that as an internet application provider it only acted in accordance with the copyright notice that was sent by the authors of the original song.
The second defendant, ONErpm, sustained in response that the economic exploitation of parodies is not allowed, considering that the patrimonial rights of the work belongs to the author of the original song.
In the court decision, the first instance judge sentenced the defendants to the payment of 30,000 Brazilian Reais as a compensation for moral damages and lost profits related to the period in which the video remained unavailable, and required Google to make the video available on YouTube.
The defendants appealed alleging the same arguments that were brought forward in their defenses and requesting the revision of the sentence or the reduction of the amount of compensation for moral damages.
In the appellate decision, the appellate judge stated that parodies are allowed by Article 47 of the Brazilian Copyright Law (Law 9.610 of February 19, 1998), as an exception to copyright infringement, provided they do not reproduce the original work or imply discredit to it.
The judge also stated that the parody “Medonhamente” meets the requirements of the Brazilian Copyright Law, insofar as it has a predominantly humoristic character and that it can’t be confused with the song “Malandramente”, not constituting unfair competition, and does not denigrate the original song.
With respect to the matter of the profit arising from the parody, the Judge stressed that the Brazilian Copyright Law does not require that the parody doesn’t have commercial purpose for it to be lawful. Therefore, the economic exploitation of the video by its author is allowed. Also, no financial compensation is required for the author of the original work.
With regards to Google, the ruling emphasized that the withdrawal of the content, even if in accordance to YouTube’s terms of service, is illegal and that the improper censorship constitutes an unlawful act, insofar as it violates the freedom of expression, in violation to the Federal Constitution and the Brazilian Internet Bill of Rights (Law No. 12.965 of April 23, 2014).
The appellate decision also emphasized that, unlike the system adopted by the United States of America (notice and takedown), the Brazilian Internet Bill of Rights is based on the freedom of expression, being up to the judicial system to request the removal of the illegal content after the complaint for copyright infringement.
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Paula Mena Barreto
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