The decision given by the Third Civil Court of São Paulo emphasizes the importance of the copyright registration in Brazil – which is often overlooked by the authors in general.
According to the Brazilian Copyright Act, the protection of intellectual works (such as photos) arises from its creation, regardless of prior registration – therefore, the registration itself is not required by means of law. The author is the person entitled to pursue the registration before the responsible authorities and this measure can help to solve any conflict like the mentioned in the news, considering that the registration can be used as proof of authorship and date of creation of the intellectual work until the presentation, by any party, of other proof showing the opposite.
The issue mentioned in the news shows that the author actually took care to pursue the registration of his photographs before the responsible authority regarding, which was a decisive factor to obtain the favorable decision given. In addition, the Third Civil Court of São Paulo also ruled that, even if the authorship was not proven, the claimant would be assumed as the owner of the photos, since he was the first to announce himself as the author of the works. However, this assumption could easily been dismissed if the defendant had made any proof capable to put in doubt the authorship of the claimant.
The decision in reference shows the importance of the registration procedure of intellectual works before the responsible authorities.
If photographer announces to be an author of the image, it’s up to who used prove otherwise
The photo is protected as a work of artistic creation and the photographer owns the copyright. To be the weakest part of the relationship, if the photographer publicly announces the image authoring, it is up to those who used the photo to prove otherwise. Following this understanding, the judge Luis Fernando Nardelli, the third Civil Court of São Paulo, condemned a travel company to compensate a photographer to use six photos without giving proper credit.
Represented by lawyer Robert Wilson Furtado, Wilson Roberto Consulting and Legal Advice Office, the photographer filed action seeking compensation for material damage by having used the image without acquiring the rights, and for moral damages, for not credited the image to the author. According to Roberto, we used six images of the photographer’s collection that had been recorded at the National Library and notarized.
Analyzing the case, the judge Luis Fernando Nardelli understood that the photographer was right. For him, “the company took advantage of the author’s work and publicized the photographic work illegally, without authorization, for profit, failing to pay the author for carrying on the work of authorship.”
For the judge, it was proved in the records, the documents attached, the authorship of the images. Nardelli also noted that, even if it was not proven authorship with documents, copyright rights rules should be interpreted in favor of the intellectual creator, “presumably the weaker party ” . ” A lot of rebuttable presumption in favor of the plaintiff to be the creator of an intellectual work since it was the first to advertise as such , while the reverse proof to the contrary (LDA , art. 13) , which it is not acquitted (CPC , art. 333, II ) , “concluded the judge.
The company tried to argue that the case, apply the provisions of Article 48 of the Copyright Law, which states: “The works permanently located in public places may be freely represented through paintings, drawings, photographs and audiovisual procedures “. However, for the judge, the article does not serve the case, since none of the six photographs refers to art works located permanently in the street or square.
Given the facts, the judge ordered the company to pay R$ 9000 (Nine thousand reais) for property damage, “as the author charges on average between R$ 1000 (one thousand reais) and R$ 2000 (two thousand reais) by photo for use of websites in images.” Already for moral damages, for not giving credit to the author of the photos, the judge ordered the company to pay R$ 6000 (six thousand reais).
Dr. Raphael Lemos Maia