Copyright and the companies

In the last years, the Brazilian Courts have been facing growth in the number of cases involving the assignment of copyrights and neighboring rights. Such decisions are slowly revealing the consequences of the interpretation of the Brazilian Copyright Act (BCA) and of Law 6.533/78, which regulates the profession of the artists and, above all, are making it clear that the companies which hire creative services must be very careful.

A decision that should be highlighted was issued after singer Cybele de Sá filed an action against Abril Video da Amazonia S.A. (case no. 778-01, 32nd Civil Circuit of São Paulo). Plaintiff alleged that her neighboring rights of dubbing artist in relation to the songs of the classic Snow White and the Seven Dwarfs had not been assigned and, for this reason, Abril could not have distributed the title on home video. Abril, however, was able to prove that, by the time of the rendering of the services, Plaintiff had indeed assigned all her rights and, based on that, she lost in the first instance. Appeal is pending.

Another decision is related to the work The Lord of the Rings. Lenita Maria Rimoli Esteves and Almiro Pisetta filed suit against Livraria Martins Fontes Editora Ltda. alleging that they had not authorized more than one edition of the translation they made of the literary works (case no. 000.02.196409-2, 37th Civil Circuit of São Paulo). With the success of the movies, Livraria Martins Fontes would have made available several editions of the works, always with the translation of the Plaintiffs. Based upon the fact that there was no contract, Livraria Martins Fontes was condemned to pay 5% of the face value of each unit sold in excess of the first edition. Appeal is pending.

The BCA only considers author the individual, i.e., it does not admit that a company be the creator of a work, even if it was responsible for its organization. The legal entity will only be the exclusive or non-exclusive owner of the work created by an individual and this can only happen with the assignment of rights since the concept of work-for-hire does not exist in the law.

The first and maybe the most important rule of the BCA is that any contracts regarding copyrights must be interpreted restrictively. The BCA also ennumerates requisites for the assignment of rights, especially the need of a written document. The contract must contain, among others, the conditions and term of the assignmet and, also, a detailed description of the modes of exploitation. Without a contract, in principle, there is no assignment and, certainly, this was one of the main reasons behind the defeat of Martins Fontes in the first instance.

Law no. 6.533/78 determines, in its article 13, that the neighboring rights stemming from the rendering of services cannot be assigned. However, article 92 of the BCA clearly affirms that the rights of the artist can be assigned. There is an obvious conflict of laws. Cybele de Sá lost in the first instance because her services were rendered much before the law of 1973. Maybe the result would have been different if the services had been rendered recently.

The above issues, still unresolved, demonstrate that the companies must be careful when dealing with any contract involving the rendering of creative services. It is essential to have a clearly written text, which must be broad but, at the same time, detailed, in order to prevent the various pitfalls of the BCA which may result in friction and sizeable indemnifications.