Newsletter Edition 38 - July 2022


Parody as an asset of the electoral campaign

Issues related to copyright in political campaigns, such as remuneration, freedom of expression, and work public domain spiked the debate on July 27, at the webinar “Copyright, Parodies, and Electoral Campaigns”, promoted by ABPI. Moderated by ABPI’s president, Gabriel Leonardos, the event had Prof. Vânia Aiêta, from UERJ, the jurist Karin Grau-Kuntz and Prof. Pedro Marcos Nunes Barbosa, from PUC-RJ as speakers.

Opening the event, Gabriel Leonardos recalled art. 47 of the Copyright Law (Law 9.610/98) and the various cases in which the Judiciary considered legitimate the use of parodies in past electoral campaigns by candidates José Serra, Dulcídio Amaral, Fernando Haddad and, in particular, mentioned the judgment, not yet finished in the STJ (Superior Court of Justice), related to the song “O Portão”, by Roberto Carlos, which is parodied by the candidate Tiririca.

By focusing her exposition on the analysis of jingles, Professor Vânia Aiêta highlighted the economic implications of this type of advertising and recalled that, according to the Copyright Law, the use of intellectual creations for electoral purposes would depend on the authors’ acceptance and authorization. “The author cannot simply be excised from his work, as there are values ​​at stake,” she said. Aiêta addressed the misappropriation issue. “It is death for the artist to see his creation as a springboard to boost a politician who propagates values ​​absolutely dissociated from his own.”

Karin Grau-Kuntz addressed the use of parodies in election campaigns. The jurist recalled that Brazilian law does not define what parody is. “The concepts involved in copyright are extremely complex and not objectively defined,” she explained. “The parody is an autonomous creation and reminds us of the previous work. Therefore, it is independent of the original work”, she defended. Grau-Kuntz proposed as a starting point for the definition of parody the perception of the receiver/consumer and not the work author. “One of the aspects is to know if the receiver recognizes the original work in the parody theme.”

In the case of parodies in electoral campaigns, she suggested a case-by-case analysis, taking into account the role of the author and how the patrimonial right is guaranteed, among other features.

In his presentation on the topic under debate, Nunes Barbosa made a distinction, in civil law, between consumer goods, civil goods, and production goods. He stressed that the production of goods of an immaterial nature is uncontrollable. “There is no way to control not only the use of the work but much less its meaning,” he stated. For the professor, the debate on authorial work use in electoral campaigns has some constraints in terms of constitutional jurisdiction. He recalled that, in the case of biographies, the Federal Supreme Court (STF) opted for a preferred logic for freedom of expression and rejected the right to be forgotten. According to him, another issue to consider is the disparate logic of intellectual property in the context of public law and electoral law. “In intellectual property, from an economic point of view, what is in dispute is the customer, while in electoral law, the dispute is over the vote, and votes are non-fungible,” he said.

Watch the webinar on ABPI’s YouTube Channel –