Wednesday, 13 March 2013

Brazil: image right is a 'higly personal' right

The Brazilian Superior Tribunal de Justiça (STJ) has given an important decision regarding images right.

The case in question was a photograph of an athlete who authorized the use of his image without financial reward. The athlete in question only granted permission to the Brazilian Olympic Committee for the purpose of the Olympic Summer Festival held in 1995. The company Sports Media was the responsible for the management of such photograph. Later on, Sport Media used the photo by manipulating it via computer graphics and using such final product for the Brazilian Championship Jiu-Jitsu 1995.

At first instance the claim for compensation was denied, a decision that was upheld by the Court of Rio de Janeiro arguing that the use of the photo in the second event was not of detriment to the reputation of the athlete and moreover, that the league to which the image was associated had no commercial purpose.

Last week the STJ overturned such decision and decided against Brazilian Jiu-Jitsu and Sports Media Ventures Ltd. The companies now need to pay compensation for damages due to improper use of image. The court clearly stated that none of the companies have had permission to reproduce the photo and used in such event i.e. jiu-jitsu. However the court clarified that in the case of image rights, the obligation to repair comes from a highly personal right and thus, there is no need for evidence of injury or damage. Moreover, the rapporteur of the case, Minister Villas Boas Cueva, noted that the jurisprudence of the Supreme Court states that “the mere publication of an unauthorized photograph of someone, usually causes discomfort, annoyance or embarrassmenpt, regardless of having been commercial purpose or not.” [Indeed, the integrity right should not be limited to the actual detriment of the person by way of injuring his/her reputation.]

Source STJ.

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