“Public place” and “public domain” are different concepts that do not enjoy equal legal treatment. A work of art in a public place, although being a public asset, gives rise to moral and material rights for its author and is not in the public domain.
Article 48 of the Copyright Act, which determines that works permanently located in public places may be freely reproduced by way of paintings, drawings, photography and audiovisual techniques, does not encompass any economic exploitation of the work.
Article 48 of the Copyright Act thus does not exclude liability for the unlawful reproduction (for profit or commercial purposes, when unrelated to tourism or culture) of an author’s artwork located in a public place.
According to Arts. 28 and 29 of the Copyright Act, ignorance of the authorship of a protected intellectual work does not allow its usage without prior and explicit authorization of the author. Moreover, Art. 24 II of the Copyright Act explicitly prescribes the author’s right to have his name, pseudonym or conventional sign (as used in this case) indicated or announced when his work is used.
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Translated from the Portuguese by Pedro Henrique D. Batista.
For more on this decision see the case note by Pedro Henrique D. Batista, “Copyright Protection of Graffiti Art in Brazil: The Limitation of a Copyright Limitation?” in this issue of IIC at https://doi.org/10.1007/s40319-021-01092-4.
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Copyright Act, Arts. 45 II, 46 VIII, 48; Civil Code, Arts. 186, 187, 188 I, 927. “Brazilian Graffiti”. IIC 52, 942–948 (2021). https://doi.org/10.1007/s40319-021-01091-5
- Economic and commercial reproduction
- Mention of authorship
- Public space
- Due remuneration
- Photographic reproduction