ANCILLARY USE OF SCULPTURES IN ADVERTISING DOES NOT CONSTITUTE COPYRIGHT INFRINGEMENT IN BRAZIL

The artist Zé Andrade filed a lawsuit against Itáu Unibanco and an advertising agency for copyright infringement, due to the unauthorized use of six of his miniature figures made of clay – among them, Einstein, Nietzsche, Woody Allen, and Monet - in advertisement films.

In the first instance, the defendants were jointly and severally condemned to pay compensation for material damages and R$ 30.000,00 (approximately US$ 6,000.00) for moral damages. Moreover, the judge also determined the inclusion of Zé Andrade’s name on the advertisement films as the sculptures’ creator. Afterwards, the Rio de Janeiro State Court determined the exclusion of the creator's name of the films and established the compensation in the total amount of R$ 80.000,00 (approximately US$ 16,000.00).

Finally, the case was analyzed by the Brazilian Superior Court of Justice (STJ), which had a different understanding of the matter. The case’s rapporteur, Justice Raul Araújo, affirmed that the film only reproduced small portions of the statues, which were simply part of the films’ set, and that their exhibition did not cause any damage to the work itself.

Justice Araújo concluded that the situation is allowed by the Brazilian Copyright Law (Federal Law No. 9,610/1998), taking into account that the exhibition of the sculptures constitutes "small sections", with an ancillary nature in relation to the main work, and that it did not cause unjustified losses to the creator. Thus, STJ sustained the advertising agency’s appeal, dismissing the lawsuit.