Author: Peduti Advogados

The Brazilian legislation protects the creators’ rights as creations of the spirit, expressed by any means, as provided in Article 7 of the Law 9610/98. Differently from what happens in other countries, such as the United States, where there is the copyright institute, which is the legal protection that the author of a work has exclusively in relation to printing, reproduction or sale, the Brazilian Copyright Law is wider about the personal protection of the one who created the work. As determined by the professor Eliane Y. Abrão, the “author’s rights are a set of moral and patrimonial prerogatives, which interpenetrate when a literary, artistic and/or scientific work becomes publicly available”.

Thus, differently from Copyright, the Brazilian Author’s right has a double nature: moral rights of the author and property rights of the author. 

The property rights are those related to the economic exploitation of the work, like the Copyright concept. The holder of the property right (which is not necessarily the one who created the work) may exploit it and receive the pecuniary fruits arising from this exploitation.

Moral rights, on the other hand, are linked to the person of the Author and link his name to his creation. Such rights, according to Article 24 of the Brazilian Law are considered personal and independent of any registration. Moreover, the moral rights are unrenounceable, inalienable, unseizable and imprescriptible. They are eternal and will always bind the creator to his creation.

The moral rights of the author consist, for example (i) the right to preserve his work as unpublished; (ii) to withdraw it from circulation, (ii) the right to claim authorship (known as paternity right), (iv) the right to care for the integrity or reputation of his work, among others.

Based on these moral rights, the Brazilian singer and composer João Gilberto, responsible for the creation of great Bossa Nova hits such as “Chega de Saudade”, filed a lawsuit against EMI, the record company that owns the Copyrights to the work. In the lawsuit, João Gilberto claims the ownership of the tapes of his first records, which were in the possession of the record company. To support such request the Plaintiff claimed the moral right to ensure the integrity of his work.

However, the Superior Court of Justice (STJ) understood that the possession of original recordings of a work are not within the scope of the author’s moral right. In addition, the STJ held that the record company, by having a valid contract with the artist, had the property right over the works, thus being the owner of the original tapes. 

To support their decision, the magistrates argued that the tapes are “the physical support of the immaterial work created by João Gilberto. Therefore, they are phonograms that can be assigned by the author, according to article 49, item V, of the Copyright Law.”

Thus, the court’s understanding clarifies that the physical form of a work guarantees the possibility of exploitation, thus, it is considered as a Copyright, which belongs to the artist’s record company. 

Such decision is important to exemplify the understanding of higher courts about the limits of the property and moral rights of the author since the moral rights are more subjective and not necessarily concern the physical form of the work, especially the musical work, which does not need its original physical form (in this case, the first recording tape) for its integrity to be guaranteed.

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Author: Joana Mendes Maneschy, Associate Lawyer at Peduti Advogados.

Source: Direito moral do compositor não garante posse de fitas originais gravadas, diz STJ

BRASIL. Lei 9.610/98, 19 de fevereiro de1998. Lei de direito autoral.

Disponível em:
http://www.planalto.gov.br/ccivil_03/leis/l9610.htm

ABRÃO. Eliane Y. Direitos de autor e direitos conexos. 2a. edição, revista e ampliada. São Paulo: Editora Migalhas, 2014;

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