Recently, the Brazilian Superior Court of Justice (“STJ”) has been turning its attention to the debate surrounding the parodies, with emphasis in the Motion for Reconsideration in the Special Appeal (“Motion for Reconsideration”) n. 1.810.440/SP. At first, the Special Appeal n. 1.810.440/SP was filed by Federal Congressman Tiririca against EMI Records, due to the alleged misuse of a parody of the music “O Portão” in Congressman’s electoral campaign in 2014.
At the Special Appeal n. 1.810.440/SP’s judgment, the Third Chamber of the STJ followed the rapporteur minister Marco Aurélio Belizze’s vote in the matter, unanimously agreeing that a parody does not require the authorization of the original work’s copyright holder, as well as that a work’s purpose is indifferent for its categorization as a parody.
Disagreeing with the outcome, EMI Records filed the Motion for Reconsideration, claiming that the STJ issued a different understanding in a similar case, the Special Appeal n. 1.131.498/RJ, filed by supermarket group Carrefour against a decision that sentenced Carrefour to pay compensations for moral and material damages due to the use of the music “Roda, Roda, Roda” as a parody in an advertisement without authorization from the copyright holder.
In the Special Appeal n. 1.131.498/RJ’s decision, the STJ followed rapporteur minister Raul Araujo vote to reject Carrefour’s claim and sentenced the supermarket group to pay the compensations mentioned, understanding that the Brazilian Copyright Law does not authorize the use of parody and paraphrase to commercial purposes, but only to study, critics or polemic purposes. Thus, the STJ agreed that the changes made in the music aimed to lure consumers to Carrefour, which could not be considered as a parody considering the lack of comic imitation, with the song being distorted for commercial interests.
On the other hand, the Motion for Reconsideration’s judgement started on February 9, 2022. The rapporteur minister Luís Felipe Salomão voted against EMI Records’ claim. To minister Salomão, a parody does not require an authorization. Moreover, he clarified that a categorization of a work as a parody depends on five requirements:
- existence of a level of creativity;
- lack of depreciation to the original work;
- respect to the honor, intimacy, image, and privacy of third parties;
- compliance with the moral right of originality of the original work’s author; and
- compliance with Berne’s three steps test, which allows the unauthorized reproduction of a work, in special cases, when there are no conflicts between the reproduction and the original work’s normal exploring nor an unjustified harm to the original work author’s interests.
After the rapporteur’s vote, minister Raul Araujo asked to examine the case’s recordings, suspending the judgement. Currently the Motion for Reconsideration is awaiting on trial docket to be judged since February 10, 2022.
Our team is available for further information, as well as to assist in any questions relating to intellectual property.
Gustavo Flausino Coelho – gustavo@bastilhocoelho.com.br
Fernando Naegele – fernando@bastilhocoelho.com.br