Clearance of IP rights under the Brazilian Law

Posted in: 14 de May de 2021        By:  

One of the most important practices when dealing with third-party artistic works is performing a process known as “rights clearance.” In summary, this consists in verifying if the underlying materials to be used may be protected by copyright, trademark or other Intellectual Property rights and obtaining the necessary authorizations from the rights holders. This is an important step for minimizing the exposure to legal actions and liability.

In the context of creative industries, copyrights and trademark rights are the most common areas requiring clearance. Regarding copyrights, Brazil adopts a division between moral rights and patrimonial rights, so you should be mindful not only of obtaining the adequate authorizations for any economic exploitation of the work, but also of giving the proper credit to the author. Contractual clauses pertaining to copyright matters must also be carefully drafted, as these provisions are interpreted narrowly under local law.

It is also advisable to verify if a certain aspect of the work is the object of a trademark. Some patterns and prints have acquired such notoriety as a source identifier that they have succeeded in obtaining protection under trademark law. Attempting to use symbols that are similar or identical to well-known registered marks can lead to claims of trademark infringement and unfair competition under the Brazilian Industrial Property Law.

Therefore, we recommend verifying the status of third-party marks at the Brazilian Patent and Trademark Office and seeking the necessary authorizations from brand owners. Of note is that the Brazilian Intellectual Property law foresees some situations in which prior authorization is not mandatory. However, these are very limited situations, such as for uses with no economic purposes.

Lastly, it is important to highlight that the Brazilian legislation recognizes so-called “personality rights”, such the right to the respect of one’s name and image, and the right of privacy.

Thus, for example, it will be necessary to ask for prior authorization to economically exploit, in a video game character, the appearance or any physical trait that singularizes an existing individual. Contrary to some common law countries, there are no specific provisions in the Brazilian Law regarding the right of publicity.

One of the most important practices when dealing with third-party artistic works is performing a process known as “rights clearance.” In summary, this consists in verifying if the underlying materials to be used may be protected by copyright, trademark or other Intellectual Property rights and obtaining the necessary authorizations from the rights holders. This is an important step for minimizing the exposure to legal actions and liability.

In the context of creative industries, copyrights and trademark rights are the most common areas requiring clearance. Regarding copyrights, Brazil adopts a division between moral rights and patrimonial rights, so you should be mindful not only of obtaining the adequate authorizations for any economic exploitation of the work, but also of giving the proper credit to the author. Contractual clauses pertaining to copyright matters must also be carefully drafted, as these provisions are interpreted narrowly under local law.

It is also advisable to verify if a certain aspect of the work is the object of a trademark. Some patterns and prints have acquired such notoriety as a source identifier that they have succeeded in obtaining protection under trademark law. Attempting to use symbols that are similar or identical to well-known registered marks can lead to claims of trademark infringement and unfair competition under the Brazilian Industrial Property Law.

Therefore, we recommend verifying the status of third-party marks at the Brazilian Patent and Trademark Office and seeking the necessary authorizations from brand owners. Of note is that the Brazilian Intellectual Property law foresees some situations in which prior authorization is not mandatory. However, these are very limited situations, such as for uses with no economic purposes.

Lastly, it is important to highlight that the Brazilian legislation recognizes so-called “personality rights”, such the right to the respect of one’s name and image, and the right of privacy.

Thus, for example, it will be necessary to ask for prior authorization to economically exploit, in a video game character, the appearance or any physical trait that singularizes an existing individual. Contrary to some common law countries, there are no specific provisions in the Brazilian Law regarding the right of publicity.








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