The Brazilian Justice determines the bringing of action to punish crime against copyright.
Time Warner Entertainment Company L.P., DC Comics and Hanna Barbera Productions, Inc. had a favorable decision in court injunction filed against the Judge of the DIPO – Department of Police Investigations and Judiciary Police of São Paulo to plead the continuation of lawsuit brought by these same companies against Little Moon Comércio de Brinquedos Ltda. for the unauthorized use of cartoon characters, such as Batman, Tom and Jerry, Tweety and Bugs Bunny.
The Public Prosecution Service, in charge of presenting petition for the commencement of suits, has constantly determined the shelving of this kind of suit since, in its judgement, the unauthorized use of characters, at an industrial scale, constitutes infringement of trademark rather than copyright. Thus, the company would have to have these characters registered as trademarks to be able to stop third parties from using them.
In Brazil, the trademark right is regulated by Law nº 9279/96 (Industrial Property Law) while copyright is regulated by Law nº 9610/98 (Copyright Law). In fact, in order to be opposable against third parties, the trademark right needs to be registered in Brazil. However, registration of copyright is optional meaning that in case of violations, the authorship needs only to be proven under the Berne Convention, to which Brazil is a signatory.
Cartoons containing those characters which Time Warner Entertainment Company L.P., DC Comics and Hanna Barbera Productions, Inc. have right to are considered copyrightable work under the Brazilian law, therefore, they are protected irrespective of any registration.
As seen here, the problem is the inadequate application of law by those who are unfamiliar with its precise coverage, notwithstanding the fact that they are those charged with the presentation of and decision-making in such measures.
The decision favoring Time Warner Entertainment Company L.P., DC Comics and Hanna Barbera Productions, Inc. is undoubtedly an important milestone in defending copyright in Brazil, as it opens a window to those standing up for it to see crimes against their work punished.
The content of this article does not constitute legal advice and should not be relied on in that way. Specific advice should be sought about your specific circumstances.
