In a decision issued by the 3rd Panel of the Superior Court of Justice1 (STJ), the court decided that works permanently located at public places cannot be freely exploited by third parties for commercial purposes, without journalistic intent, notwithstanding the provisions of article 48 of Law 9,610/98 (Brazilian Copyright Act). According to the court, the right to economically use works of this nature would remain subject to the author’s authorization.
The case consisted on the unauthorized use of a famous graphite from Beco do Batman, in São Paulo, as background composition for a fashion editorial. Such unauthorized exploitation involved the use of clothing brands along with the graffiti.
The court’s decision in this case complements a decision rendered by the 4th Panel, which stated that works permanently located at public places could not be freely exploited if they constituted the main content of the third party’s creation.
1 REsp 1.746.739
More information is available, in Portuguese, in https://www.conjur.com.br/2020-ago-31/uso-grafite-rua-publicacao-comercial-fere-direito-autoral