*A work is usually protected in the US if it is a type of work copyrightable in the US, published after 31 December 1928 and protected in the country of origin on the URAA date.
This page provides an overview of copyright rules of Brazil relevant to uploading works into Wikimedia Commons.
Note that any work originating in Brazil must be in the public domain, or available under a free license, in both Brazil and the United States before it can be uploaded to Wikimedia Commons. If there is any doubt about the copyright status of a work from Brazil, refer to the relevant laws for clarification.
Brazil became independent of Portugal in 1822 with the creation of the Empire of Brazil. The country became a presidential republic in 1889 following a military coup d'état.
As of 2018 the World Intellectual Property Organization (WIPO), an agency of the United Nations, listed Law No. 9.610 of February 19, 1998 (Law on Copyright and Neighboring Rights, as amended by Law No. 12.853 of August 14, 2013) as the main IP law enacted by the legislature of Brazil.[1]
WIPO holds the text of this law in their WIPO Lex database.[2]
The Law No. 9.279 of May 14, 1996 (Law on Industrial Property, as amended up to Law No. 10.196 of February 14, 2001) is also relevant.[3]
General rules
According to Brazilian Copyright law of 1998,
The author has the exclusive right to use his literary, artistic or scientific work, to derive benefit from it and to dispose of it.[9.610/1998 Article 28]
The author's economic rights shall be protected for a period of 70 years as from the first of January of the year following his death, subject to observance of the order of succession under civil law.[9.610/1998 Article 41]
Where a literary, artistic or scientific work of joint authorship is indivisible, the term of protection provided for in the foregoing Article shall be calculated from the death of the last surviving joint author.[9.610/1998 Article 42]
The term of protection of economic rights in anonymous or pseudonymous works shall be 70 years counted from the first of January of the year following that of the first publication.[9.610/1998 Article 43] The provisions of Articles 41 apply where the author makes his identity known before the expiry of the period referred to in the introduction to this Article.* The economic rights in audiovisual and photographic works shall be protected for a period of 70 years from the first of January of the year following that of their disclosure.[9.610/2013 Article 44]
In addition to the works in respect of which the protection of the economic rights has expired, the following shall pass into the public domain.[9.610/1998 Article 45]:
I. the works of authors deceased without heir;
II. the works of unknown authors, subject to the legal protection of ethnic and traditional lore.
The term of protection of neighboring rights shall be 70 years from the first of January of the year following fixation for phonograms, transmission for the broadcasts of broadcasting organization, and public performance in other cases.[9.610/1998 Article 96]
The old copyright of 1973 provided that copyright lasted for the life of the author and 60 years after their death. However, it also provided that the children, parents, and the spouse of the author benefited of the rights for life, even if it exceeded the 60 years. The copyright law of 1998 did not extend copyright in works where the life+60 years terms had already expired. For instance, the estate of Graciliano Ramos relied on this provision to extend their rights beyond 2024 (Ramos died in 1953). Ramos' last living daughter died in 2022, and in December 2023, the Ramos family complied with Brazilian law.
Under the Berne Convention, Article 2.4, It shall be a matter for legislation in the countries of the Union to determine the protection to be granted to official texts of a legislative, administrative and legal nature, and to official translations of such texts.
The convention was implemented by Federal Decree nº 75.699 of 1975 but the decree does not address the issue.
Some freedom of access was defined in 1988 with the new Federal Constitution,[4][5][6]
Article 5 (XIV) – access to information is ensured to everyone and the confidentiality of the source shall be safeguarded, whenever necessary to the professional activity.
Article 216 (Para 2) It is incumbent upon the Government, in accordance with the law, to manage the keeping of the governmental documents and to make them available for consultation to whomever may need to do so.
In 1998 the exclusion from copyright protection of these types of work was expressed by article 8, items I and IV of the Copyright law. It excludes legislative and judicial documents, but not all works (ex. cited maps, tables, etc.) created by the federal government.
See {{PD-BrazilGov}}. Note: a special clause must be added to the CC0 implicit license of legislative documents that obliges copiers to add a red notice saying "This text does not replace the original published in the Official Gazette".
All photographic works produced until 19 June 1998 follow the 1973 Brazilian copyright law, which deemed Public Domain works not considered to be "artistic creations".[7] This includes documentary photography in general (commercial or not), as well as non-artistic photographic portraits. {{PD-Brazil-Photo}} should be used for those cases. Some examples to help define which photos are, and are not, "artistic creations", and therefore object of protection under the 1973 copyright law:
OK The facade of the Jung Frau building, in Joinville, as well as partial views of the city, when photographed in an obvious simple way, without employment of any special ("diferenciada") technique"
TJ-SC - Apelacao Civel : AC 111630 SC 2002.011163-0 (2006): "não se considera criação artística as fotografias tiradas por profissional do ramo que retratam de forma manifestamente singela, sem o emprego de qualquer técnica diferenciada, o frontispício de um edifício residencial e a vista parcial da cidade, em observância a contrato de prestação de serviços entabulado com empresa do ramo imobiliário e com destino publicitário previamente ajustado entre as partes"
OK Mere documental, descritive photographs in general, such as photographs documenting social reunions:
TJ-SC - Apelacao Civel : AC 111630 SC 2002.011163-0 (2006): ""mera documentação fotográfica, sem caráter artístico, afasta a incidência do direito de autor, "... tornando possível o uso de terceiro sem menção do nome do fotógrafo, pois, conforme lei brasileira, somente a fotografia artística (pela escolha do objeto e condiçõe de execução) se inscreve dentre as obras protegidas." (...) [segue exemplo ilustrativo] fotografias documentárias de reuniões sociais - Autor que na época estava do desempenho de funções junto ao réu - Inexigível a referência ao nome do fotógrafo por não se tratar de trabalho artístico - Falta de originalidade, criatividade, valor estético ou de furo de documentação "
OK
TJ-PR - Apelação Cível : AC 946589 PR Apelação Cível - 0094658-9 (2000) "As fotografias destinadas a documentos de identidade, produzidas por máquinas automáticas, não são obras artísticas. (...) Também não devem alcançar a proteção do direito de autor as fotografias meramente técnicas, em que se procura uma reprodução tal qual de certo objetivo, sem a menor preocupação artística."
Not OK
TJ-MG : 2933464 MG 2.0000.00.293346-4/000(1) (2000) "as fotos [...] denotam caráter artístico, caracterizando-se pela originalidade, criatividade e técnica da sua autora, elementos que dela não se podem excluir como reveladores, a princípio, de uma obra de arte. Não são elas, como pretende o apelante, meras constatações ou reproduções de imagens para fins publicitários, ou instantâneos comuns"
Simplified flowchart for licensing in the context of Brazil
{{PD-BrazilGov}} – for works published or commissioned by a Brazilian government (federal, state, or municipal) prior to 1983, or the text of a treaty, convention, law, decree, regulation, judicial decision, or other official enactment.
{{PD-Brazil-media}} – for Brazilian photographs and audiovisual works first published more than 70 years ago.
{{PD-Brazil-URAA}} – for Brazilian photographic works published/created before 1998, whose author died before 1936, or anonymous works published before 1936.
{{PD-BR-1935}} – for Brazilian audiovisual works created before 1936 that entered the public domain 60 years after creation.
Under the Copyright Law, all works subsidized by the Union are in the public domain.[9.610/2013 Article 6]
According to the Industrial Property Law of 1996,
The following are not registrable as marks: ... reproductions or imitations of titles, policies, coins, and paper currency of the Union, the States, the Federal District, the Territories, the Municipalities, or of a country.[9.279/1996 Art.124(XIV)]
However, the law prohibits reproducing or imitating, in whole or in part and in a way that may induce error or confusion, coats of arms, escutcheons, or national, foreign or international official badges, without the necessary authorization, in a mark, title of establishment, trade name, insignia or advertising sign, or using such reproductions or imitations for economic purposes.[9.279/1996 Art.191]
OK, {{FoP-Brazil}} with caveats. Freedom of panorama is allowed in Brazil, including commercial use, to some extent. According to the Copyright Law 9.610 as of 2013,
Works permanently located in public places may be freely represented by painting, drawing, photography and audiovisual processes.[9.610/2013 Article 48]
Representation is allowed, but reproduction is forbidden.
Works of art placed in locations with access to the public can be freely represented by photography, painting, drawing and audiovisual means, to the extent that it does not reproduce the artwork.
Commercial use is allowed, as long as the artist's work is properly attributed and the representation does not consist of a reproduction.
The existing jurisprudence consistently allows commercial use of artworks under freedom of panorama, as long as the artwork is accessory, and is not detached from its surrounding elements, and therefore not unfairly used to produce revenue that by law belongs to the artist.
According to the available jurisprudence, and the ongoing debate about Article 48 in Brazil, "Public places" means "places available to the public", including private property and building interiors. Lawyer Marcelo Frullani Lopes says on the question of commercial use of representations of the Rio de Janeiro iconic landmark Christ the Redeemer: "although the area is privately owned, public access to the site is not restricted. One cannot ignore, also, that the Christ Redeemer is part of the landscape of Rio de Janeiro. From this point of view, the place where the work is located must be considered a public place."[9]
Examples of public places quoted in a 2017 court case include squares, gardens, sidewalks, parks, avenues, streets, museums, cultural entities.[10]
Article 48 of Law nº 9.610 of February 19, 1998 must be interpreted with other articles of the law, as established by case law.[11]
Article 5 of Federal Constitution of Brazil states: XXVII – the exclusive right of use, publication or reproduction of works rests with their authors and is transmissible to their heirs for the time the law shall establish.
Under the Copyright Law as of 2013, unless otherwise agreed, the author of a work of art, when disposing of the object in which it materializes, transmits the right to exhibit it, but does not transmit to the acquirer the right to reproduce it.[9.610/2013 Article 77] Authorization to reproduce a work of art in any form must be in writing and is assumed to be costly (se presume onerosa).[9.610/2013 Article 78]
Sample freedom of panorama court cases
Statue of Christ the Redeemer in Rio de Janeiro
In Frederico George Barros Day vs. Edipress (2016): A mural in a public alley was represented by photography in a commercial publication, deformed and without attribution. The court considered the artwork was not being used in a way that took away revenue from the artist, even by being in a commercial publication. However, it considered that the artist's moral rights were violated due to lack of attribution and misrepresentation of the work in an improper way (deformed mural), causing damage to his reputation. An indemnization was granted.[12]
In a more recent case involving the same artist, Frederico George Barros Day (graffiter) vs. Editora Abril (2017), the artwork was reproduced on magazine covers, without attribution and with clear commercial intent, due to freedom of panorama being confused with Public Domain. An indemnization was granted.[13]
In Ricardo Fernandez Costa (artist) vs. Leo Burnett Publicidade Ltda (2017): Use of mural graffiti placed in a public alley in publicity campaign for shopping center, the court considered there was no breach of moral or material rights of the author, and that the use was allowed under Article 48.[14]
Cleir Ávila Ferreira Júnior (artist) vs. Confederação Brasileira de Futebol - CBF & Outplan Sistemas (2017) concerned representation of the artist's sculpture "Araras" in tickets sold for a soccer game. Commercial use of the representation was considered by the court to be covered by freedom of panorama as it was not detached from its landscape.[15]
This differs from Sival Floriano Veloso (sculptor) vs. Telemar Norte Leste SA, where a statue was detached from its surroundings on commercialized phone cards.[16]
In Frederico George Barros Day (graffiter) vd. Edições Globo Conde Nast, commercial use of a representation of the mural in a fashion presentation was deemed to be correct under Article 48, as it was contained within the street landscape.[17]
In the Panda / Mochilheira case (2015), commercial use of a representation of a mural in a fashion presentation was deemed to be correct under Article 48. Use of the "Panda" mural as background for the Mochilheira fashion show was deemed by the court to be accessory, and therefore covered by Article 48.[18]
In Camila Pavanelli & others (mural artists/graffiters) vs. Lew’lara/TBWA Publicidade Propaganda, casual presence of artwork in a commercial spot was not in breach of the law under Article 48.[19]
In a much quoted 2011 court case, Sival Floriano Veloso (sculptor) vs. Telemar Norte Leste SA, commercial use of representations of sculptures in a public place was deemed to be unlawful in court. On the phone cards being sold, the sculptures had been detached from their surrounding elements, which was considered to be in breach of Article 48. The court case lasted from 2007 to 2011, dealing with use of representations of sculptures placed in a public place in phone cards sold by the phone operator. The sculptures had been detached from their surrounding elements, which was considered to violate the spirit of Article 48. Of the three judges that voted on the final sentence, two considered that Article 48 does not cover commercial use of representations of artworks, when that representation was only about the artwork. The third judge considered that commercial use was allowed by Article 48, even when the only represented subject was the artwork.[20]
Compare the above with Cleir Ávila Ferreira Júnior (artist) vs. Confederação Brasileira de Futebol, where the commercial use of an image of an artwork under copyright was considered to be covered by Article 48, as unlike this case, it had not been detached from its surrounding elements.[21]
The situation was repeated in 2016, when a representation of a house on a commercial product was detached from its surrounding elements and used commercially by a paint manufacturer without consent by the architect, and without proper attribution.[22]
Other cases, in particular related to Rio de Janeiro's iconic Christ the Redeemer which has been widely used commercially, have been quoted in court and in technical opinions to support the notion that Article 48 does indeed allow for free and unrestricted representation of works of art in public places.[23]
In a 2017 juridical technical opinion, statues in public squares used in selling products were presented as an example of what is covered by Article 48. Recent jurisprudence related to Article 48 reinforces the notion that freedom of panorama in Brazil cannot be used in any way that provenly takes or diverts revenue that by right would belong to the artist.[24]
In 2016, a controversial court case arose about a paint brand who used the representation of a copyrighted architectural work (house) to sell the paints, without attributing the work, and under the payment of a fee to the house owners (not the copyright holders). While the court considered the commercial use of the artwork representation unlawful, and granted compensation to the copyright holder, it based its sentence on the fact that there was payment for the use of the specific artwork to someone who was not the copyright holder of the work, thus taking away revenue from the artist and damaging his rights. The court also emphasized the architect's moral rights violation, from commercializing his work without properly attributing it, and said this fact alone was enough to warrant compensation.[25]
Use of the above decision to imply an interpretation of Article 48 as forbidding commercial use in general is disputed and contradicted by other evidence.[26]
Also, in this case, the image of the house on the commercialized product was detached from its surrounding elements.[27]
The Superior Court has written, "The point is not merely representation of the surroundings of the architectural work, but of representation of the architectural work solely for the purpose of profit."[28]
In any case, the ongoing debate on Brazilian jurisprudence over Article 48 is limited to the resulting financial damage to the artist, which has to be consistently demonstrated by palpable proof, and not to the use of artwork representations.[29][30]
More recently, in June 2018, a 2nd instance Brazilian court affirmed the a hospital had the right to commercially use the image of the Rio de Janeiro Monument of the Redeemer even without any landscape context. "Article 48 of Law 9.610/98 in its literal sense authorizes the free representation of works located permanently in public places, and does not require maintenance of the landscape context."[31]
There are some court cases related to threshold of originality in Brazil. According to one study, and the court decisions contained in it, the concept of creativity in Brazil is way more strict and exigent than in the United States, and consequently the threshold of originality is considerably higher than the United States, which is the general reference in Commons.[32]
Examples:
OK. In the case of Boneco de Preço Miúdo (2011), puppets that were a tridimensional and humanized version of a logo were deemed by the court to lack enough originality to be protected. The court considered that there was no originality or unpublished work in the puppets because they represented an already existing symbol (the supermarket's logo), and that there were already previous 3D and humanized versions of that logo. The court did not grant any value nor legal protection to the specific 3D and humanized version of the logo in question, and called it something like a "stylization subordinate to a previous idea".[33]
OK. Copyright for compilations/ reorganizations of already existing elements has often been rejected on court, hinting that the threshold for what constitutes an "intellectual creation" in this respect is quite high in Brazil.[34]
OK. Slogans are generally acceptable. In rare occasions they may be protected, when there is such a level of creativity as to attain the level of a literary work. For example, in the Guerra das Moedas court case (2013), copyright in the expression was not recognized by the court. The verdict stated that the language is the cultural patrimony of the people, so language expressions can't be protected by law. The Rede Globo vs. Ronaldo Ciambroni case was similar.[35][36]
Some examples help define which photos are, and are not, "artistic creations", and therefore object of protection under the 1973 copyright law:
OK. The facade of the Jung Frau building, in Joinville, as well as partial views of the city, when photographed in an obvious simple way, without employment of any special ("diferenciada") technique". The court ruled: "photographs are not considered artistic creations ... that portray in a manifestly simple way, without use of any differentiated technique, the front of a residential building and a partial view of the city, under a service contract with a real estate business with a predefined advertising purpose"[37]
OK. Simple documentary, descriptive photographs in general, such as photographs documenting social reunions: In SC-AC 111630 SC 2002.011163-0 (2006): "mere photographic documentation, without artistic character, does not qualify for copyright ... making it possible to use a copy without mention of the photographer's name, since, according to Brazilian law, only artistic photography (by choice of the object and conditions of execution) is listed among protected works. ... [for example] with documentary photographs of social gatherings, where the author was performing duties for the defendant, a reference to the photographer's name is not required because it is not an artistic work..."[38]
OK. A 2000 ruling stated: "Photographs for identity documents, produced by automatic machines, are not artistic works. ... Neither should purely technical photographs, which reproduce a certain object without the slightest artistic concern, be protected by copyright."[39]
Not OK Another 2000 decision stated: "the photos [...] have an artistic character characterized by the originality, creativity and technique of its author, elements that reveal ... a work of art. They are not, as the appellant claims, mere reproductions of images for advertising purposes, or common snapshots."[40]
Puppets who were a tridimensional and humanized version of this logo were deemed in court to lack enough originality to be protected.
↑ LEI Nº 5.988, DE 14 DE DEZEMBRO DE 1973[1] (in Portuguese), Presidente da República de Brasil, 1973-12-14: “as obras fotográficas e as produzidas por qualquer processo análogo ao da fotografia, desde que, pela escolha de seu objeto e pelas condições de sua execução, possam ser consideradas criação artística”
↑Grafite e Direito Autoral(in Portuguese) (2019). Retrieved on 2021-07-16. "Para não ser considerada crime ambiental, se feita em local particular necessita da autorização do dono e em local público da autorização do órgão competente, caso isso não ocorra será considerada crime, e nesse caso entende-se que não seria nem poderia ser protegida pela lei de direitos autorais.."
↑Marcelo Frullani Lopes (23 August 2014). Representação do Cristo Redentor em filme não pode ser vetada(in Portuguese). "apesar de a área ser de propriedade privada, o acesso público ao local não é restrito. Não se pode ignorar, também, que o Cristo Redentor integra a paisagem do Rio de Janeiro. Por esse ponto de vista, o local em que a obra se encontra deve ser considerado logradouro público para fins de aplicação desse dispositivo."
↑Página 2657 do Superior Tribunal de Justiça (STJ) de 30 de Novembro de 2016(in Portuguese). Retrieved on 2019-03-12. "A hipótese, todavia, não é de mera representação a paisagem, em que inserida a obra arquitetônica, mas sim de representação unicamente da obra arquitetônica, com a finalidade lucrativa."
↑Tribunal de Justiça de Santa Catarina TJ-SC - Apelacao Civel : AC 111630 SC 2002.011163-0(in Portuguese). "não se considera criação artística as fotografias tiradas por profissional do ramo que retratam de forma manifestamente singela, sem o emprego de qualquer técnica diferenciada, o frontispício de um edifício residencial e a vista parcial da cidade, em observância a contrato de prestação de serviços entabulado com empresa do ramo imobiliário e com destino publicitário previamente ajustado entre as partes"
↑Tribunal de Justiça de Santa Catarina TJ-SC - Apelacao Civel : AC 111630 SC 2002.011163-0(in Portuguese). Retrieved on 2019-03-11. "mera documentação fotográfica, sem caráter artístico, afasta a incidência do direito de autor, "... tornando possível o uso de terceiro sem menção do nome do fotógrafo, pois, conforme lei brasileira, somente a fotografia artística (pela escolha do objeto e condiçõe de execução) se inscreve dentre as obras protegidas." (...) [segue exemplo ilustrativo] fotografias documentárias de reuniões sociais - Autor que na época estava do desempenho de funções junto ao réu - Inexigível a referência ao nome do fotógrafo por não se tratar de trabalho artístico - Falta de originalidade, criatividade, valor estético ou de furo de documentação"
↑Tribunal de Justiça do Paraná TJ-PR - Apelação Cível : AC 946589 PR Apelação Cível - 0094658-9(in Portuguese) (2000). Retrieved on 2019-03-12. "As fotografias destinadas a documentos de identidade, produzidas por máquinas automáticas, não são obras artísticas. (...) Também não devem alcançar a proteção do direito de autor as fotografias meramente técnicas, em que se procura uma reprodução tal qual de certo objetivo, sem a menor preocupação artística."
↑Tribunal de Justiça de Minas Gerais TJ-MG : 2933464 MG 2.0000.00.293346-4/000(1)(in Portuguese). Retrieved on 2019-03-12. "as fotos [...] denotam caráter artístico, caracterizando-se pela originalidade, criatividade e técnica da sua autora, elementos que dela não se podem excluir como reveladores, a princípio, de uma obra de arte. Não são elas, como pretende o apelante, meras constatações ou reproduções de imagens para fins publicitários, ou instantâneos comuns"
Caution: The above description may be inaccurate, incomplete and/or out of date, so must be treated with caution. Before you upload a file to Wikimedia Commons you should ensure it may be used freely. See also: Commons:General disclaimer
OK The facade of the Jung Frau building, in Joinville, as well as partial views of the city, when photographed in an obvious simple way, without employment of any special ("diferenciada") technique" TJ-SC - Apelacao Civel : AC 111630 SC 2002.011163-0 (2006): "não se considera criação artística as fotografias tiradas por profissional do ramo que retratam de forma manifestamente singela, sem o emprego de qualquer técnica diferenciada, o frontispício de um edifício residencial e a vista parcial da cidade, em observância a contrato de prestação de serviços entabulado com empresa do ramo imobiliário e com destino publicitário previamente ajustado entre as partes"
Not OK TJ-MG : 2933464 MG 2.0000.00.293346-4/000(1) (2000) "as fotos [...] denotam caráter artístico, caracterizando-se pela originalidade, criatividade e técnica da sua autora, elementos que dela não se podem excluir como reveladores, a princípio, de uma obra de arte. Não são elas, como pretende o apelante, meras constatações ou reproduções de imagens para fins publicitários, ou instantâneos comuns"
use {{PD-BrazilGov}}
Puppets who were a tridimensional and humanized version of this logo were deemed in court to lack enough originality to be protected.