By Ricardo Zeef Berezin
“Network users worldwide read digital magazines in the same way as the printed editions put into circulation. That means, digitized magazines are not other works (…), but the same for which the author was paid for.” With this grounding, the São Paulo State Court of Appeals dismissed the lawsuit for damages filed by Millor Fernandes – passed away in March 2012 – against the Brazilian publishing house Editora Abril and against the Brazilian bank Bradesco S / A, represented by the lawyer Alexandre Fidalgo, of Messrs. Espallargas, Gonzalez, Sampaio, Fidalgo Associados. The decision can be appealed.
Mr. Millor Fernandes, who has been substituted in the lawsuit by his heirs, argued that the publication of his creations on the internet, in a project named “VEJA 40 YEARS – Digital Collection”, which provides the whole collection of the magazine since its first edition – violates his copyright, since the author of the work has not given his permission. The heirs pleads compensation and included in the Bank Bradesco as second defendant, for sponsoring the project.
However, according to the Case Reporter, Hon. Justice Rodrigo Garcia Martinez, it is of huge social interest to make all contents of the publication accessible to the public.” He reminded on the thesis of the jurist Eduardo Vieira Manso, according to which “on the one hand, there is the author, whose work and personal creativity should be protected and rewarded; on the other, the company, which provided him with the raw material for the work”. The author, as part of society, “cannot oppose his personal interest at the expense of the higher interest of the culture.”
The judge said that the journals are collective works that have simply been scanned. Thus, the authorship belongs to the person or entity, who has organized the project, after all the co-workers have already been paid by them. “Further, the author does not detain exclusiveness over all articles, illustrations etc. that are part of the each of the digitized journals, which were actually created and developed by a group of professionals engaged and paid by this defendant.”
As regards the liability, Justice Martinez stated that the bank was a mere product sponsor. “In other words, it has not caused any fact described in the initial motion, but merely provided the publishing house with a certain amount of money to divulge its image.”
The 3rd Chamber of Private Law of the São Paulo State Court of Appeals accompanied the Reporter Judge and dismissed the claim of indemnity. Further, it was ruled that the Plaintiff should pay the lawsuit costs, expenses and attorney’s fees, set at 20% of the value of the case, which had been originally set at R$ 25,000.00 (approx. US$ 12,500.00).
Appeal No. 9189719-67.2008.8.26.0000
Ricardo Zeef Berezin is journalist reporter of Consultor Jurídico.
Revista Consultor Jurídico, August 17, 2012