Use of the Brazilian singer Tim Maia’s chorus on T-shirt print violates copyright
The paraphrased use of words that appear in the choruses of Tim Maia’s songs on T-shirts without prior authorization constitutes undue appropriation of a work for commercial exploitation. It generates the obligation to pay compensation for copyright infringement.
The 3rd Panel of the Superior Court of Justice reached this conclusion in a unique appeal. The singer’s estate, which filed the action against the fashion label Reserva, died in 1998.
One of the contested prints has the inscription “Guaraná & Suco de Caju & Goiabada & Sobremesa,” taken from the excerpt “Tomo guaraná, suco de caju, goiabada para sobremesa” (I drink guaraná, caju‘s juice, goiabada for dessert) from the song “Do Leme ao Pontal,” released by Tim Maia in 1986.
The ordinary courts concluded that the singer’s rights had been violated and ruled that the lawsuit was admissible. They prohibited the sale of T-shirts with the inscription and ordered the company to pay R$15,000 in moral damages and material damages to be determined.
The 3rd Panel of the Court upheld the ruling but changed how material damages were calculated. The rapporteur for the case, Justice Marco Aurélio Bellizze, explained that the trademark’s conduct led to the improper sale of T-shirts with reproductions of musical works.
“The prints go beyond a mere reference to the author’s works, as they are copies of the lyrics of the songs, with the simple addition of the connector ‘&,’ which constitutes an undue appropriation of a work for commercial exploitation,” said the judge.
Low compensation
Minister Bellizze also concluded that obtaining material damages based on the amount received by the trademark from the profits from the improper marketing of the T-shirts is not enough to punish the conduct and discourage copyright infringement.
The artist’s association with a certain trademark without due authorization may represent an endorsement of a thought that does not coincide with the singer’s perception, linking him to the brand without his approval.
For the rapporteur, the conduct allows the company to have a greater advantage since, by associating itself with Tim Maia’s image, it can increase the value of its trademark and the sales of other products.
Therefore, he determined that the compensation would consist of the total amount obtained from the sales plus all the losses from Tim Maia’s estate.
In other words, Reserva will have to pay the singer’s family all the money it raised from the sale of the products and all the amount that should have been paid in a possible contract authorizing the use of the work on clothing items. The amount will be collected in settlement of the judgment.
Source: Conjur
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