What’s in a name? State Court of Rio de Janeiro clarified the protection afforded to titles of works of authorship

lettering applied to image by Pieter Beens from Stock.xchngIn comparison with more mundane matters such as consumer complaints against vendors, landlord and tenants disputes or business related matters, copyright cases are still relatively rare for local judges.
Even within the realm of copyright cases, the vast majority is related to allegations of blatant piracy or some form of plagiarism.

However, this week, I learned of a recent decision involving a specific topic within the copyright law. The case revolved around the legal protection afforded to titles of works of authorship and this blogger was positively impressed by the decision which can help clarify the boundaries of protection of titles.

The Court had to deal with a quarrel between two publishers of literary works with an identical title “CAMPO DE ESTRELAS” (which can be directly translated as “FIELD OF STARS”). The Plaintiff was not happy to see another book with the exact same title and sued the defendant claiming copyright violation in relation to the title and requesting the removal of the latter work from the market as well as indemnification. Both works were related to the famous Caminho de Compostela or The Way of Saint James but were different in their approach (Plaintiff’s work was a self-help type book and defendant’s a fiction or romance book ) so that no copyright violation of the work per se was involved in the court action. The problem was the exact same title.

Well, our copyright law has a specific provision which determines that the protection of an intellectual work shall extend to its title, provided that it is original and not capable of being confused with that of a work of the same nature disclosed earlier by another author.

First, the court gave some thought as to what should be considered as works of the same nature for the operation of the law. According to the decision, the fact that one book was of the type of self-help while the other a work of fiction was not sufficient to make them works of a different nature as they were both literary works. In principle, the court said that the law would consider of different nature works of distinct artistic fields such as movies and music or literary works but even in these cases the court explained the possibility of confusion could still exist in special circumstances.

The court then clarified that a title can be so original that it can be considered a work of authorship in itself and, thus, protected as any other work by the Copyright Law. However, this is not common as titles are not in general so original to be considered a work per se separated from the underlying work.

The above provision of our Copyright Law will then protect titles which, although not so original to be considered for protection as a work per se, have sufficient originality and are sufficiently different from other titles of the same nature to still warrant protection.

Applying this reasoning to the title in question “CAMPO DE ESTRELAS” the court explained that, at its origin, the expression “CAMPO DE ESTRELAS” has a meaning which is related to the theme of the books. The Spanish term “COMPOSTELA” is in fact derived from the Latin expression “Compus Stellae”, which means Field of Stars. Guess which is the translation to Portuguese? Yes, you guessed correctly: “CAMPO DE ESTRELAS”!

Further, the court explained that an internet search has pointed to the existence of other literary works associated with the expression “CAMPO DE ESTRELAS” which predated both works, such as (a) “Caminho de Santiago, Uma Peregrinação ao Campo de Estrelas”; (b) “Campo das Estrelas”; (c) “Foice na Lua do Campo das Estrelas”; and (d) “Pés no Caminho, Campo de Estrelas”.

The court considered that the preexistence of these literary works with titles encompassing the expression “CAMPO DE ESTRELAS” was detrimental to the Plaintiff and that this fact coupled with the “suggestive” nature of the title in relation to the theme precluded the Plaintiff from asserting copyright protection to the title against the Defendant. The decision is still subject to appeal.

If affirmed, the decision can be a valuable precedent for similar cases in the future.

Rodrigo Borges Carneiro

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Filed under Brazilian Copyright Law, Copyright in Brazil, Copyright Law, Intellectual Property

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