Copyright – “Not So Magical” Misuse

Copyright – “Not So Magical” Misuse

By Julieta Pérez Espinosa.

In the recent case “Marketing Externo SA c. Telecom Personal SA s/ Damages” (File No. 23,837/2017) dated August 10, 2022, Chamber G of the National Court of Civil Appeals confirmed the sentence that admitted the claim for damages, for the unauthorized use of the song “Magic City” from “Tan Bionica” in an advertising campaign.

Marketing Externo SA filed a complaint for damages against Telecom Personal SA for the use without its authorization and without paying the corresponding royalties, of the song (whose property rights the plaintiff has), used to promote the renowned festival “Personal Fest Verano 2015”.

When answering the complaint, Telecom stated that they had hired the company “Siberia S.A.” for the development of the advertising campaign, a company that – according to their understanding – would have faced and canceled the obligations derived from all the rights for the development of said campaign. For this reason, Telecom used and exhibited the advertising campaign understanding that all the intellectual rights involved in the advertising were duly satisfied.

In the first instance, the action regarding Siberia SA was rejected, but the Judge ordered Telecom to pay an indemnity of $300,000 plus interest, and the costs of the process.

For the Judge´s criteria, the defendant “was in charge of a legal obligation of result, which consisted on obtaining, prior to the dissemination of advertising, the express authorization of the plaintiff to use the phonogram corresponding to the work music in it”.

The plaintiff appealed the decision, requesting an increase in the compensation for the damages to the total amount that the defendant paid for the advertising campaign, plus an additional 100% (one hundred percent) as “punitive compensation”.

The Court understood that the plaintiff’s claim lacks support, since not only was it not explained concretely and well-founded on what the claim for reparation was based on, but it also bears no relation to the amount for which the External Marketing firm acquired the property of the band’s music catalog. For this reason, he confirmed the amount awarded by the Judge.

Likewise, it highlighted what the author of an intellectual work may claim in the event of an infringement of his rights: “the author of an intellectual work is entitled to the benefit that he could have obtained if an illicit use would not have occurred or the best remuneration that he could have received had he authorized exploitation. By this reasonable alternative, it is avoided that it is more beneficial to infringe the author’s right than to respect it, because if the user pays a lower price in Court than negotiating with the right holder, infringements are encouraged”.

Regarding the claim for compensation for “punitive damages”, the Court quoted the criterion of the doctrine that establishes that its granting is exceptional and of restrictive interpretation. In this sense, the Court confirmed the first instance decision as “in a case such as the present one, neither is enrichment without cause projected in a kind of inertial profit – so to speak – a benefit for the actioned party, proven in the process, derived from the effects of the civil offense involved in the process”.

Consequently, the Court decided to reject the appeal filed by the plaintiff and confirm the judgment of First Instance.

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