Monday, 11 April 2011

just look don't reproduce -- works of art exhibited in public places

Reproduction for commercial purposes of works of art located in a public place without permission of the author infringes the copyright of the artist, the Fourth Chamber of the Superior Court of Justice (STJ) held.

Artist Sival Floriano Veloso filed an action for compensation for damages and suffering, againts the phone company Telemar Norte Leste S/A. In first Instance the Court of Maranhão ordered the phone company to pay R$ 250,000 to the author because the images of his sculptures were reproduced in phone cards without prior knowledge and consent.

The works at issue are located in the main city square of São José de Ribamar (MA) and were prepared at the behest of the state government. Telemar claimed that the works are public property and are in public area, they are of free access to the population, which would make the implicit permission ‘for use by all’. To this effect, Telemar argued that Article 48 of Law No 9.610/1998 limits the copyright of works permanently located in public places.

Telemar appealed and the STJ noted that the commercial interest, direct or indirect, does not affect Article 48 of Law No 9610/98, but Articles 77 and 78 do. According to the latter Articles which deal with the use of works of art, convey the right to expose it, but not the reproduction right, which authorization must be in writing and, presumably, for reward. The Junior Minister Aldir Finch, rapporteur of the appeal explained that the said work of art installed in public areas, although it is public property, it generates moral and material rights to the author.

Veloso's sculptures were reproduced in five models of pre-paid phone cards: there was a total of 50,000 copies sold each for R$ 6 reais. In four models, the works appear in the foreground and none bears the name of the artist.

Telemar's appeal was decided by majority vote.

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