There is no specific provision in the Brazilian legislation that recognizes the right of publicity, an intellectual property right described as the right of every individual to control the commercial exploitation of his or her likeness. In Brazil, aspects of one’s identity receive the statutory protection of the so-called personality rights, which include image rights and the right to respect of the person’s name and voice.
The right of publicity and personality rights have their origins in the right of privacy and can both be the subject of a civil action (similar to a tort). However, a key difference is the weight given to the economic purpose behind the infringing conduct. In countries that recognize the right of publicity, the appropriation of a person’s likeness must be linked to the commercial value associated with it, usually in the context of the advertisement of a business or a product.
Infringements to personality rights, in turn, do not require an economic motivation to be actionable – the mere unauthorized use would be sufficient to recover damages, regardless of whether it generates financial gain to the infringer. Nevertheless, the notoriety of the plaintiff and the economic loss caused by the violation of its personality rights are still relevant elements in considering the amount of compensation.
Therefore, there is a lower threshold for recovering damages under personality rights – if one’s physical trait is recognized, or recognizable, and such appropriation was not preceded by the necessary authorizations, the conduct is subject to liability, even if no economic advantage resulted from the misuse. This shows the importance of performing a clearance of rights procedure prior to launching products that incorporate third-parties identity aspects.
In Brazil, the 21st Trial Court of the State of São Paulo recently awarded damages to goalkeepers Vanderlei Farias and Alessandro Beti Rosa, after allegations that characters reproducing their physical traits were incorporated to a football video game without prior authorization. When delivering its decision, the judge expressly mentioned that the athletes’ personality rights, including their image rights, had been infringed.
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This article was written by Fernanda Vieira