Court bans use of character that alluded to children’s icon Fofão

Court bans use of character that alluded to children’s icon Fofão

On 15 July, the 2nd Chamber of Private Law of the São Paulo Court of Justice unanimously upheld a decision by the 7th Civil Court of Ribeirão Preto (SP) that condemned the musical group Carreta Furacão for the unauthorized use of the image of the character Fofão for their performances and advertising pieces. The case arose after it was discovered that Carreta Furacão was using a character imitating Fofão without the authorization of the copyright holders. According to the lawsuit, the creator of the Fofão character expressed, during his lifetime, his wish that his character be used only for the entertainment of young people, prohibiting other purposes.

After the creator’s death, the masks and costumes of the original character were destroyed to prevent misuse. However, the defendant company created the character ‘Fonfon’, claiming that it was a parody intended to honour Fofão, citing the support of article 7 of Law 9610/98 (Copyright Law) and defending that there would be no confusion among the public regarding the characters. In his defense, he claims that the creator of Fofão himself used caricature masks to represent famous personalities.

At first instance, the judge disagreed with the defendant’s argument and ordered the removal of any content involving the ‘Fonfon’ character, as well as prohibiting the use ‘of any kind, with or without the intention of profit, including the hypothesis of using another similar to the FOFÃO character’, under penalty of a daily fine of R$2,000, limited to 60 days. Also, according to this decision, the defendant was ordered to pay compensation for material and moral damages to the plaintiff, with the material damages quantified by the unauthorized use since 2016 and the moral damages set at R$70,000.00.

In judging the appeal, the Court upheld the veto on the use of the character and pointed out that the National Library, where the character ‘Fonfon’ was registered, does not examine the merits of submitted registrations. It was also noted that art. 28 of the LDA grants the author the exclusive right to use, enjoy and dispose of the work and to authorize its use in any existing or future form, which gives rise to his property rights.

In his vote, the judge reporting on the case, José Carlos Ferreira Alves, emphasized that ‘the group decided to create the character as a way of circumventing copyright and continuing to make unauthorized use of it, making the fallacious claim that it is in fact a parody doubtful’. The magistrate also highlighted the dualist theory of copyright (moral rights and property rights) to justify that ‘once the improper use has been demonstrated with the unauthorized modification by the author of the work, the illegal conduct is already characterized, and the damage resulting from it is presumed’.

 The decision can be accessed via the link: Processo 1012022-44.2022.8.26.0506

Note: For quick release, this English version is provided by automated translation without human review