According to a recent decision¹ rendered by the Brazilian Superior Court of Justice, the unauthorized use of an individual’s image (likeness) for commercial purposes results in the obligation to pay to the offended party part of the profits that arose out of the unlawful act, in addition to moral and monetary damages.
In this case, the Brazilian actress Giovanna Antonelli filed a lawsuit against Dermo Formulações Farmácia de Manipulação LTDA – ME, seeking moral and monetary damages, in addition to the payment of all economic gains that the defendant accrued with the sale of its products due to the unauthorized use of the actress’ image (likeness) in the advertising campaign (the so called “profit of intervention”). The defendant did not submit a defense.
The lower court ordered the payment of moral and monetary damages to the plaintiff. After the plaintiff’s appeal, the lower’s court decision was amended to include the payment by defendant of the “profit of intervention”, set at 5% of the sales volume of the products during the period of unauthorized use of plaintiff’s image (likeness). The plaintiff filed a Special Appeal to the Brazilian Superior Court of Justice aiming to increase the percentage fixed.
In judging the appeal, the Brazilian Superior Court of Justice recognized the plaintiff’s right to the “profit of intervention” and determined the fixation of the percentage and quantification of the amount due to plaintiff in a separate damage award procedure.
¹ Special Appeal No. 1.698.701