“Parody of a Song for Election Campaign”

• 1. The patrimonial rights of an author embodied in the creation of a derivative work – the product of transforming an original work – will, as a rule, be dependent on the express prior authorisation of its owner

• 2.
  

  However, with the aim of reconciling property rights with the preservation of fundamental values of a democratic state – such as culture, science, privacy, confidentiality, national development, freedom of the press and freedom of expression – Law No. 9.610/1988 lists limitations to an author’s exclusive right to use his/her work.

• 3.
  

  Thus, Art. 47 of the aforementioned Law dispenses with the need for authorisation from the owner of an intellectual work that serves as the basis for the intertextual creation known as “parody”, as long as the latter is not a “true reproduction” of the pre-existing creation or damages the reputation of the latter.

• 4.
  

  Parody is the comedic imitation of a literary composition, a film, a piece of music, or any work known to the public. Almost always humorous, parody uses mockery and/or irony to entertain or provoke criticism of or reflection on an original work (“target parody”) or any other topic (“weapon parody”). It is a new interpretation of a pre-existing work or adaptation of the latter (in the form of a different, mocking, satirical version) to a new context. Irony and criticism are, indeed, the essence of parody. The purpose of protecting this type of intellectual creation by law is to safeguard freedom of expression, an essential condition for the pluralism of ideas, which, in turn, is a pivotal value of the democratic system.

• 5.
  

  While freedom of expression is a highly relevant postulate, the legal authorisation to create a parody may not serve as a pretext for the misappropriation of works of third parties.

• 6.
  

  Consequently, on the basis of the applicable law, international standards and the case-law of this Court, a parody created without the authorisation of the author of the original work can be considered lawful only if the following requirements are met: (i) there is a certain degree of creativity (i.e. the derivative work may not be a true reproduction of the parodied work); (ii) there is no detrimental effect on the original work; (iii) it respects the dignity, privacy, image and confidentiality of third parties (Art. 5(X) of the 1988 Constitution); (iv) it observes the moral right of the author of the original creation to conserve his/her work unchanged (Art. 24(III) of Law 9.610/1998); (v) it satisfies the “three-step test”, which allows unauthorised third parties to exercise the right of reproduction in special cases that do not conflict with the normal exploitation of the work or unreasonably prejudice the legitimate interests of the author; and (vi) there is no commercial intent, in view of the additional reasoning provided by the Honourable Justice Raul Araújo.

• 7.
  

  In the present case, it can be seen that the use of an excerpt (with altered lyrics) from the song “O Portão” [“The Gate”] – by Roberto Carlos and Erasmo Carlos – in a 2014 political-electoral campaign for the then candidate for Brazil’s Chamber of Deputies Francisco Everardo Oliveira Silva (known as “Tiririca”) satisfied all the requirements listed above. The initial complaint filed did not point out any constraint of any kind – whether moral, psychological, political, cultural or social – that infringed the existential right arising from the universal postulate of “human dignity”.

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