“How long?” Gabriel O Pensador sues online stores for unauthorized use of music, raising e-commerce concerns

One of the biggest icons in Brazilian rap, singer and songwriter Gabriel O Pensador has filed a lawsuit in the Rio de Janeiro court against two of the country's leading e-commerce platforms, Mercado Livre and Shopee, as well as seven other online stores. The dispute revolves around the unauthorized use of excerpts from the song “Até Quando” on products such as t-shirts, posters, and decorative items. Released in 1993, it became one of the most emblematic songs in Brazilian rap.

When a song becomes a hit and captures the public's imagination, it is common for entrepreneurs to see it as an opportunity to profit. However, this trend does not always respect the copyright and image rights of artists. This is precisely where legal risks arise, serving as a warning for those who commercialize without authorization.

According to Luiz Fernando Plastino, an attorney at Barcellos Tucunduva Advogados (BTLAW) and specialist in Intellectual Property, states that the Copyright Law prohibits the use of intellectual works, except with authorization or in specific situations known as copyright limitations, where the use does not constitute an infringement. “The reproduction of excerpts from a song on products may be prohibited by law if the reproduction is not limited to small excerpts and provided it is not the main attribute of the product nor causes unjustified harm to the author or owner of the song,” he explains.

In the view of Kevin de Sousa, a civil law attorney and master in Personality Rights, , partner at Sousa & Rosa Advogados, the legal protection of Brazilian artists is theoretically solid but practically challenging, combining Article 20 of the Civil Code – which protects image and honor – with the moral rights under Article 24 of Law 9.610/98, creating a dual shield.

“I see three fundamental pillars here: first, the right to the integrity of the work, which prevents its distortion; second, the right of paternity, ensuring recognition of authorship; third, protection against unauthorized commercial use that distorts the original context,” he argues.

Moreover, the misuse of artistic works, such as that of the rapper, goes beyond financial aspects. “Particularly relevant in the case of Gabriel O Pensador, when a work of social protest becomes a t-shirt print without context, it affects not only the artist's pocket but also their creative identity and political message,” the attorney defends.

Liability of platforms

The Supreme Federal Court (STF) recently ruled that digital platforms, such as marketplaces, can be held liable for illegal content posted by third parties, even without a court order, depending on the case. This decision changes the previous understanding, according to which these companies could only be held liable if they failed to comply with a court order. Now, the STF understands that this rule is insufficient to protect people's rights on the internet, especially in more serious situations.

“Furthermore, if the platform is notified and takes no action, or if it is profiting from these products, directly or indirectly, it may be held liable for the damages caused to the artist,” warns Victória Dias, an attorney at Ambiel Bonilha Advogados and specialist in Entertainment Law and Intellectual Property.

“The STF also made it clear that platforms must have moderation rules, effective reporting channels, and transparency reports. If they lack these mechanisms, this will also weigh against them in the event of potential liability,” the attorney adds.