You are a professional photographer taking photos in a modern, beautiful city like Rio De Janeiro. It is a safe bet to say that, more often than not, you will happen to include copyrighted monuments, buildings and works of art in your photographs. You may do that accidentally – you want to depict someone and the monument stands in the background; or you may do that deliberately, because the monument is meant to be the subject of your photography. You have to admit that including copyrighted materials when taking photos in public spaces is basically unavoidable. But what are the consequences of it?
The “Freedom of Panorama” Exception
Freedom of panorama is the right to take commercial or personal photographs of public spaces. Brazilian copyright law protects freedom of panorama quite broadly. Indeed, Article 48 of Law No. 9610 of February 19, 1998, on Copyright and Neighboring Rights provides, “works permanently located in public places may be freely represented by painting, drawing, photography and audiovisual processes.” It seems that Brazilian law renounces to protect the copyright of the artist, sculptor or architect who created the work situated In a public space. For the creators, the freedom-of-panorama mean a relevant loss of control over copyright in their works.
The case of Christ the Redeemer
The statue of Christ the Redeemer stands above the Corcovado mountain in Rio De Janeiro, and is certainly one of the landmarks of that city. It goes without saying that it has certainly appeared in many photographs, postcards and documentaries.
The Christ the Redeemer is still covered by copyright. The statue was designed by Brazilian engineer Heitor da Silva Costa and it was sculpted by French artist Paul Landowski: Landowski died in 1961, and per Brazilian law economic rights last until 70 years from the death of the creator. However, who owns the copyright has been very much under debate. Landowski’s heirs claimed royalties on the access tickets to the statue; however, it is known that the sculptor was working under commission from the Archdiocese of Rio de Janeiro, which ultimately seems to be the legitimate copyright owner.
Indeed, in 2010, the Archdiocese sued Columbia Pictures for copyright infringement. Columbia produced a disaster movie titled “2012,” where a giant wave topples the famous statue. The billboard of the movie also depicted the statue about to be covered by the wave. The Archdiocese claimed they had infringed their copyright – both in their economic and moral rights and demanded damages, while Columbia rebated that a license was indeed pursued, but from the heirs of Landowski.
More recently, in 2014, during the Football World Cup, Italy’s state television, Rai, broadcasted a commercial featuring Christ the Redeemer wearing a blue Italian football shirt. The Archdiocese of Rio again claimed that Rai infringed their copyright in the statue.
How are these copyright claims compatible with the “freedom of panorama”, that Brazilian law seems to protect? The matter is highly debatable: the law is clear, but its ratio jurisis, probably, protecting small professionals rather than the interests of big corporations. Also, freedom of panorama has been conceived as an exception to the general copyright rule rather than a principle. But where do you draw the line? The issue between Columbia and the Archdioceses was not solved by a Court, but was – probably – settled privately between the parties, as Columbia lawyers declared “We are currently in discussions with the archdiocese in hopes of reaching an agreement in this matter.” The decision to settle is a clear indicator that an established interpretation on the limits of the “freedom of panorama” exception is still missing.
