Monday, 19 September 2011

Your image right? Oh darling, look at your contract of employment first

Once upon a time a Brazilian publisher (Panini Brazil Ltda) edited and published the photo sticker album ‘Campeonato Brasileiro 91’. Fluminense former player Carlos Alberto Luciano, filed an action for compensation for material and moral damages, against the editor for publishing without permission, his photo as a sticker in the aforementioned album.

The situation is that at the time the album was published, Luciano was playing for the Rio de Janeiro club. Panini Brazil Ltda argued that it had signed a contract with the club which involved the right to use the image of its players. To this effect, Panini noted that by signing the contract it is Fluminense who is held liable for any damages resulting from the dissemination of these images. Moreover, Panini added that the athlete had acted in bad faith by filing the action, mentioning that 17 years has gone by between the publication of the album and the filing of the suit.

At first instance, the court of the 14th Civil Court of Belo Horizonte condemned the publisher to pay R$ 12,000 in moral damages and ordered the club to pay compensation. The publisher appealed and so did Fluminense. In the second instance the Court of Justice of Minas Gerais acknowledged that this case was no for a common court but for a labour court and thus, annulled the first instance decision and decided to refer the case to the Labour Court, which raised the conflict of jurisdiction in the Supreme Court.

Superior Court of Justice (STJ).
The rapporteur of the case, Minister Nancy Andrighi, held that the property right to use the image of the player depends on the employment contract. It concludes that the action for compensation for material and moral damages, filed by former player against Panini Brazil Ltda is the competence of a labour Court.

The news refers to case No CC 113220.

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