The Superior Court of Justice (STJ)1 affirmed the condemnation of the company Oi S.A. and the city government of São Borja for the unauthorized use of photos of the city’s landmarks on phone cards. The was filed in 2013 by an Argentine photographer against the unauthorized commercial use of his photographs in February 2002.
STJ dismissed Oi’s claim that the statute of limitations for filing the lawsuit had expired, holding that the case deals with non-contractual infringement. In these cases, the statute of limitations would be counted as from the plaintiff’s knowledge of the damage, its extension and identity of the infringer, and not as from the moment of the violation of his right.
The Reporter Justice Nancy Andrighi justified that the joint condemnation of the company Oi with the city of São Borja to pay damages of R$ 20,000 for moral damages to the photographer, under the argument that “The one who […] sells or uses fraudulent work with the objective of obtaining economic profit is also liable, jointly with the infringer, for copyright infringement, as categorically set forth in article 104 of the Brazilian Copyright Act, with no room for discussion about his guilt for the occurrence of the crime“.
Therefore, notwithstanding the existence of an assignment of rights agreement between the company and the city government, in which the city government declared that it owned all rights over the photographs, Oi was also obliged to pay damages to the photographer, due to its use in the company’s phone cards.
1 REsp 1.785.771