One of Brazil's biggest rap icons, singer and songwriter Gabriel O Pensador, has filed a lawsuit in the Rio de Janeiro courts against two of the country's leading e-commerce platforms, Mercado Livre and Shopee, as well as seven other online stores. The dispute centres on the unauthorised use of excerpts from his song. "Até quando" translates to **"Until when?"** or **"How long?"** depending on the context. In products such as t-shirts, framed prints, and home décor items. Released in 1993, it became one of the most iconic songs in Brazilian rap.
When a song becomes a hit and captures the popular imagination, entrepreneurs often see it as an opportunity for profit. However, this move doesn't always respect the copyright and image rights of the artists. This is precisely where legal risks arise, and a warning sign for those who commercialise without authorisation.
Згідно з Luiz Fernando Plastino, solicitor with Barcellos Tucunduva Advogados (BTLAW) and a specialist in Intellectual Property.The Copyright Act prohibits the use of intellectual works, except with authorisation or in specific situations, known as limitations on copyright, where use is not an infringement. "The reproduction of parts of a song in products may be prohibited by law if the reproduction is not limited to small excerpts, and provided it is not the main feature of the product, nor causes unjustified harm to the author or owner of the music," he explains.
In the view of Kevin de Sousa, a civil lawyer and Master of Law in Personality Rights, Partner at Sousa & Rosa SolicitorsThe Brazilian artist's legal protection is theoretically strong, but practically challenging, combining Article 20 of the Civil Code – which protects image and honour – with the moral rights in Article 24 of Law 9.610/98, creating a double shield.
"I see three fundamental pillars here: first, the right to the integrity of the work, which prevents its misrepresentation; second, the right of authorship, ensuring recognition of the original creator; and third, protection against unauthorised commercial use that distorts the original context," he argues.
Furthermore, the misuse of artistic works, such as that of the rapper, goes beyond the financial aspect. "Particularly relevant in the case of Gabriel O Pensador, when a work of social protest becomes a T-shirt design without context, it affects not only the artist's pocket, but also their creative identity and political message," the lawyer argues.
Accountability of platforms
The Supreme Federal Tribunal (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 circumstances. This decision alters the previous understanding that these companies could only be held responsible if they disobeyed a court order. Now, the STF believes this old rule doesn't adequately protect the rights of people online, particularly 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 could be held liable for the damages caused to the artist," warns Victória Dias, solicitor with Ambiel Bonilha Lawyers and specialist in Entertainment Law and Intellectual Property..
The Supreme Court also made it clear that platforms need moderation rules, genuinely functioning reporting channels, and transparency reports. If they lack these mechanisms, it also weighs against them in the event of potential liability," the lawyer adds.
