ARAUJO, Camila Jarahy [2]
ARAUJO, Camila Jarahy. Right to employee's Image. Multidisciplinary Core scientific journal of knowledge. 08 Edition. 02 year, vol. 02. pp 64-85, November 2017. ISSN: 0959-2448
SUMMARY
The present work aims to discuss the absence of a regulation covering the right of personal portrayal of the worker, as well as analyze the legal guardianship of the image to which the employee is entitled. Through a civil and constitutional analysis to extract the existence of protection of the right in the image to the employee, there is already such a right provided in specific cases in labor relations, as well as being a fundamental right ensured by Magna Carta . There is also talk in the civil law, which law guardianship over the image, establishing your due compensation in case of violation. To this end, it is necessary to make an authorization given by the employee for the use of your image, as well as the compensation of the same when done so onerous and in violation of the principles of human dignity. Faced with the growing problem of commercialization of the image of the worker, we must make the creation of legislation to protect specifically the right to image in labor relations.
Keywords: employment law, Employee, right of personal portrayal, Civil law, Right of personality.
1. INTRODUCTION
Because of the speed with which the media and technologies develop, as well as modern mechanisms of acquisition and publication of information, increasingly required of interpreters when treating of the affronts to personality rights, are compelled to solve intricate ties between industrial relations and the prerogatives of the worker, without forgetting their individuality and immanent rights.
In order to denote mirror of essence of man, it is observed that the concerns about the many facets of the right to image are constantly revived, when not presented new approaches require the solution indoctrinators and courts.
The unbridled search for new sources of profits, driven by the capitalist system, brings and enhances the eucentrismo, leaving a lot of time, blind to the increase in sales of products and services at the expense of the underprivileged worker.
In this tune, the present article fia to analyse the right worker's image as a right of personality and the boundaries of the employment relationship, doing special focus to the use of uniforms with advertisements for products sold without the consent of the worker, laying out the reasons convincing in predominantly national doctrine and judged, from higher courts.
First, will be punctuated the principles of labour law, its characteristics and origins, distinguishing the constitutional source of harvest that are specially juslaboral to the point where it touches the personality rights, at which time the exsurge need for integration and complementarity between constitutional, civil and fields of labour system.
Then, approaching about the purpose of the study, enters the right to image as attribute of the human being constitutionally protected as a fundamental right, crossing and overlapping regulations of the relationship of labor and employment, where, then, defines the scope of the subordination of the employment contract and the legal placements.
For both, this article takes the qualitative methodology with theoretical and research literature, seeking a logical and rational activity in which data collection will be searching of elements with the constitutional legislation, infra, doctrine and jurisprudence as a source for analysis and conclusions in front of reality. In this tune, the reality experienced by workers, then mark out with abstract rhetoric of the scholars of law, keeping an eye on the contours of the right to employment relations image.
So, mister do highlight the importance of an interpretation under the constitutional light, plus an integration to existing postulates, which does not exempt the legislature to create devices on CLT to regulate the right of image in work contracts.
2. PRINCIPLES OF SUBSTANTIVE LAW OF THE WORK
In spite of the art. 8 of CLT restrict and assign to the function of integrating the loopholes of the law, the principles of shedding system policy function, carrying you normative force, which in short exercise the functions of integration, interpretation and inspiration, as well requires the eminent Master Miguel Reale (1999, p. 305) to assure that they are:
mobilizes foundational truths of a knowledge system as such inadmissible, because they are evident or having been proven, but also for practical reasons of operational character, that is, as assumptions required by the needs of research and praxis.
Under such conceptual premises, it is observed that in the post-World War II, established the dignity of the human person to the level of "super", including axiologicamente and teleologically constitutions of Democratic States the premise interpretive and reference in application of the law, including, therefore, the labour law.
Furthermore, as highlights Mascaro Birth Kobiet (2011, p. 454) the principles and fundamental rights are concepts that relate, however end to achieve the same result, more broadly on the principles, given that direct the planning guideline entire legal, listing the main guidelines that should regulate. Another band fundamental rights are transferred to the individual and your subjective sphere of protection, which the legal system can't pull away.
The labor law has own principles, identified and used by doctrine and jurisprudence, emphasizing there is just some naming distinctions, to be better destrinchadas the posteriore, namely: 1-protective principle; 2-principle of non-waiver; 3-principle of primacy of reality; 4-principle of continuity of employment.
Stands out, Furthermore, that the Federal Constitution of 1988, established himself as one of the foundations of the democratic State of law in art. First, the social values of labour and free enterprise, as well as in the course of their devices the constitutional principles of work, appearing as pillars in the labour law.
2.1. CONSTITUTIONAL PRINCIPLES Of WORK
The art. 170 of the Magna Carta ratifies the fundamentals of art. First, asserting that:
The economic order, founded on enhancement of human work and the free initiative, is intended to ensure that all existence, as the dictates of social justice, observing the following principles:
(…)
III-the social function of property;
(…)
VI-environmental protection, including through differentiated treatment according to the environmental impact of products and services and their processes of preparation and provision;
VII-reduction of regional and social inequalities;
VIII-the pursuit of full employment; (BRAZIL, 1988)
In the same footprint, art. 5, XIII, bails the free exercise of any work, trade or profession, met the professional qualifications established by law.
Another cute, art. 6 of the Constitution, establishes, as a social right, main order, the right to work, tangenciado of several others, such as the right to maternity protection.
Already the caput of the art. 7 of the Magna Carta, to safeguard other rights which seek to changing social conditions of urban and rural workers, the principle protector, the front outlined.
In addition, the framework of the principle of equality in constitutional handling of urban and rural workers. It is worth mentioning that this principle – heading of art. 5 of CF/1988 – support the principle of equality of pay. Furthermore, the principle of gender equality needs to be noticed in your hand not just Protocol, but also material, treating differently the different, to the extent of your difference.
This mat, in subsection XXXI, art. 7 of CF/88, the prohibition of wage differentiation and hiring the worker carrier parameters of special needs. In this line, even in art. 7, XXXII, it is forbidden the differentiation between manual, technical and intellectual work or between the professionals of the same carat. The non-discrimination principle, entabulada denotes the prohibition of unequal treatment for cases where there is no right or justifiable reason, thereby establishing discrimination without undue criteria or justification.
There is also in art. 7, item I of the Charter, the Republican principle of protection from arbitrary or parting without just cause, translated by doctrine as a principle of continuity of the employment relationship.
As a basic precept of the employment relationship, extract of item VI of the art. 7 the principle of irreducibility of pay, which in truth is not absolute, since character has your own exception bulge at the end of the paragraph, reference to the Convention or to the collective bargaining agreement.
Soon after the heading and subheadings I and V of the art. 8 of CF/88, sets forth the freedom of association as a principle, regardless of the device itself make reservations to such freedom, as asserts in item II of the same article, providing for the principle of unity of Association, prohibiting the establishment of more than one entity, on the same basis with the same territorial representative of professional or economic category, in any degree.
2.2. OWN PRINCIPLES OF LABOR LAW
Among the specific principles of labor law stand out as major ones that constitute the epicenter of labour protection and privileges, guaranteeing the right to decent work in the relations of subordination, beginning with the protective principle, as below:
the) principle of protection:
Is based on principle to establish protection and equate worker in harvest labor, a natural disadvantage from subordination inherent to the employment relationship, so this principle provides an advantage to the employee when in deal, being subdivided into three:
I) the in dubio pro operario or in dubio pro miserable: this principle is used in the instant of drafting, interpretation and application of standards, i.e. factual situations, where emerging differences of understandings, seek yourself and will stand out to benefit the What worker, since your next creation generating a lot of criticism, by establishing excessive protection to workers;
II) the application of the more favourable to the employee standard: search with such complementarity principle the principle of in dubio pro Builder, making the application of standards, a choice that is more favourable to the worker, because the Constitution itself put the labor rights within the catalogue of human rights and of the fundamental rights of the human person;
III) the application of the most favorable condition to the employee: This lists all the prerogatives and rights already achieved by the worker, being these more favourable, cannot be changed, since they have integrated into the legal heritage of the worker, as well provides the Article 5, section XXXVI of the CF, which protects the acquired right.
b) principle of primacy of reality:
This principle States that it is the reality of the facts should prevail, not relevant what is written in the contract, if the factual situation does not translate real, given the economic disproportion and hierarchical rank between employer and employee, leading often to bizarre working conditions that don't match with the contract of employment, and by accepting them just to keep your job. Accordingly, in assessing the facts shall be primacy to the pursuit of truth at the expense of the form and the terms set out in the employment contract, in order to protect labor rights.
c) principle of non-waiver of rights:
In connection and complementarity to the principle of primacy of reality, the non-waiver of rights advocates the prohibition of early disclaims for worker rights, given the clear imbalance between employer and employee, which without such a principle would lead to coações and influences to the employee open hand to keep employment rights thus possible waivers can only happen if established by the labor courts, which would be an exception, being lawful only in the cases of article 7, items VI, XIII and XIV of C onstituição.
d) principle of continuity of the employment relationship:
Every relationship of denotes a contract job deal thereafter, that is, on which the parties continue over time, and therefore not transient. Highlights that the permanence and duration of the employment contract are of paramount importance to the State itself, answer the constitutional principle of full employment, safeguarding balance and harmony among men in society. Furthermore, the principle of continuity doesn't mean perpetuity in employment and that the workers have some security to work and live in peace, aware that the employer cannot take arbitrary decisions without consequences.
3. PERSONALITY RIGHTS
The main advance in the protection of personality rights came up with Letter of 1988, which left expressed in art. 5, X "are inviolable intimacy, private life, honour and image of persons, ensured the right to compensation for material or moral damage resulting from your infringement" (BRAZIL, 1988).
As well the illustrious master Carlos Roberto Gonçalves (2012, p. 172) on the design of the personality rights emphasizes that:
The design of the personality rights is based on the idea that, aware of the economically significant rights, your person detachable holder, such as property or credit against a debtor, other, no less valuable and worthy of legal protection, inherent in the human person and her linked in perpetual and permanent way. Are the rights of personality, whose existence has been proclaimed by the natural law, including, among others, the right to life, liberty, the name, the body itself, the image and honor.
These rights bring in your midst a set of rules and characteristics, summarily described in art. 11 of the Civil Code, that "except for the cases provided for by law, the personality rights are not transferable and irrevocable, your Office may not undergo voluntary" (BRAZIL, 2002).
As well teach Nelson Rosenvald (2011, p. 184) "the personality rights are inexorably attached to the development of the human person, characterized as a guarantee for the preservation of your dignity," expressing the minimum necessary and essential to life with dignity.
With a view to placing and constitutional classification mentioned above, it is concluded the image as a fundamental right.
For Pablo Stolze and Rodrigo Pamplona (2011, p. 217) the image is nothing more than the expression of human individuality, sensitive outdoor possessing two types, which are the image-picture-physical aspect of the person-and image-attribute – which refers to the perceived personality by others.
In this tuning fork, the non-waiver as it reflects the idea that the personality rights cannot be abdicados. "The resignation of off-balance-sheet personality is also not applicable, on the grounds of your unavailability" (rabbit, Fábio Eyeto, 2006, p. 184). Another feature is the non-transferability, which does not admit the demise of one subject to another.
It should be noted that, in addition to the attributes described in art. 11 of the civil code, the personality rights are absolute, unlimited, imprescriptible, attached, inexpropriáveis and for life.
The characteristic of being absolute causes can be enforceable against everything and everyone, generating purposes and duties of respect for society. To do so, extract the correlation attribute non-waiver and the holder of such rights have or give in.
Furthermore, the personality rights are General, i.e. granted to all people by being born alive, that is, exists.
Another feature is that they are off-balance-sheet items have no quantifiable or measurable content, despite that in case of injury, its effects can be quantified economically.
Already barred denotes there is no time limit for your enjoyment, as well as not wearing out or breaking up at your Office, differentiating itself, obviously, the loss of the claim for repairing a possible transgression of the right of personality, who then has a period Statute.
In the wake of unavailability, comes from the fact that it is always exempt safeguarding the right of personality to the impossibility of losing it in the face of economic interests, and may, in fact, be the attachment of patrimonial rights credit arising from the right of personality, as the transfers of the right to use the image.
And finally the life tenure, denoting the personality rights are inherent and innate of the individual from birth to death.
The following should be noted that the right to image, kind member of personality rights, constitutionally provided for bedding and your moral integrity protected, has all the features of personality rights, focusing in your external aspect.
4. RIGHT TO IMAGE IN THE EMPLOYMENT RELATIONSHIP
Some scholars differ as to the classification and framing of the image if this is important to physical or moral nature. To do so, in view of the start of the moral effects when such rights are violated, the current membership of Pablo Stolze and Rodrigo Pamplona (2012, p. 236).
The illustrious master Carlos Alberto Bittar (1995, p. 87) defines the right to image as being:
the right that the person has on your plastic shape and components therefor, other than (face, eyes, profile, bust) that creating individual within the collective. Therefore focuses on the physical conformation of the person, including the right to do a set of characters that identifies the social environment. In other words, is the bond that binds a person to your external expression, taken as a whole, or in part (as the mouth, eyes, legs, while individualizadores of the person).
Brother Durval (1988, p. 105), adds that the right of personal portrayal, "is the projection of the personality of the individual in the outside world. Therefore, it would be considered a Natural right, comparable to his own business, inconsiderados about the right to image ".
To Maria Helena Diniz (2002, p. 120), "the right of personal portrayal is to not see your effigy exposed in public or commodified without your consensus and not having your personality changed material or intellectually, causing damage to reputation".
As you can see, the right to assets and off-balance-sheet image has character, which in your time is divided into image-photo and image-attribute.
Fábio Ulhoa Coelho (2012, p. 190), with your dedicated argucia and synthesis power sets
"(…) the image-picture is the representation of the body of the person for at least one of the parties that identifies (the face, for example), while the image-is the set of attribute characteristics associated to it by your acquaintances (or, being famous, by the popular imagination).
Occurs, that according to the public projection of the person, famous or anonymous, the image may be of a patrimonial character, that is, measurable or not economically, since the image of the famous person can generate financial revenue to the extent and proportion of how known can be, as well as ally to imaginary attributes of society.
Despite the many attributes of personality, these have caveats and assumptions relative suppression in cases provided for by law. The right to the image, with respect to the material aspect, has this caveat, distinguishing itself from other personality rights, since you may have of your image for a certain period of time, causing the holder of the right to obtain pecuniary utility of the use of your image.
It is noted in the media, in particular television, how people get notoriety and from that exploit your image commercially. Such economic activities are legal, as long as you don't go into shock or violate any other law, and do not manage waiver or total abolition of the right, which is inherent to being and it turns off.
As a rule the right to image is not transferable, since nobody can yield something that composes the essence. What happens in fact is a concession or permission to use the image of the holder for a fixed period, done through contract in which will denote n not a transfer of the image and the possibility of enjoyment, with the appropriate contract, authorisation or license granting of use, in which detailed every situation should be of use and commercialization of the image, as a term, purpose, payment, forms of publication/dissemination, coverage area, renewal, etc.
Thus, the Federal Constitution of 1988, ensured the right to image in your title II, on Fundamental rights and guarantees, in sections V, X and XXVIII, of art. 5° in verbis:
Art. 5 All are equal before the law, without distinction of any kind, ensuring to Brazilians and foreigners residing in the country the inviolability of the right to life, freedom, equality, security and property, in the following terms:
(…)
V-are assured the right to reply, proportional to the injury, in addition to the compensation for material damage, moral or image;
(…)
X-are inviolable intimacy, private life, honour and image of persons, ensured the right to compensation for material or moral damage resulting from your infringement;
(…)
XXVIII-are ensured, pursuant to law:
- the) individual equity protection in collective works and image reproduction and human voice, including sporting activities;
- (b)) the right of supervision of the economic exploitation of the works they create or participate to creators, performers and their trade union representations and associative; (BRAZIL, 1988)
The highlight for both, that in order to protect such constitutional devices, the constituent assembly qualified them as immutable clauses, making like that become immutable, as art. 60, § 4°, IV, Citizen Charter.
Such is the importance of the right to image, seeking to regulate and develop the mechanisms of protection, was engaged in art. 20 of the Civil Code of 2002 that:
Art. 20. Unless authorised, or if necessary for the administration of Justice or the maintenance of public order, the written disclosure, the transmission of the word, or the publication, display or use of the image of a person may be prohibited, your application and without prejudice to the compensation that fits, if you achieve the honor, repute or respectability, or if they are intended for commercial purposes. (BRAZIL, 2002)
However, it is observed that the legislature was very unhappy in the formulamento of the device, in addition to not create article exclusively intended for the right to image and their supervisory mechanisms, even brought to light concerns about constitutionality, your Vista limit and set condition to the holder of the right to prohibit the disclosure of your image only in cases where the affect of deleterious form your honor, not always presents itself and put the chance of legal protection of image as hu's personality quality Mana.
The article in question constitutional devices affront that gave independence in protecting the right of personal portrayal, feature denotes and makes it a Fundamental right. The article makes an exception and in addition one more chance to image protection beyond the violation of honor, that is has been used for commercial purposes. Occurs as the doctrinal understanding more authoritative civil law, as well as the constitutionalists, the image cannot be adjusted only when it hurts the honor, repute or respectability.
Following such a line of understanding, the Superior Court of Justice has long jurisprudence condemning in moral damages to those who make use of the image of third parties without proper authorization or for commercial purposes, including, for both the summary paragraph 403 of the SCJ says: "is independent of proof of prejudice to indemnification for unauthorized publication of image of person with economic or commercial purposes ".
The constitutional perspective (which should prevail), it is important to appreciate the desire of the holder of the right of image, in which will express the nod your course (verbal or documentary) or tacitly, and may be before or after the use, however, always unequivocally, beyond than the interpretation of such an agreement of use should happen so restricted and may not be extensive interpretation to the use of the image in other ways.
Adds Adriano de Cupis (2004, p. 140) that:
The need to protect the person against the arbitrary distribution of your image, derives from an individualistic, that person must be referee to consent or not in the reproduction of its own traits: the careful sense own individuality creates a prudence, reserve requirement. This need has become stronger with the technological advances, which allowed the use of the photographic process, which greatly facilitates reproduction.
In view of the constant development of the means of information, communication and trade, made the scholars strongly questioned the device law for presenting a restrictive clause in the face of the countless and unpredictable list of hypotheses in which the right to the image can be tampered with, leading to believe for some, in a grammatical analysis and teleological/not the economic legal system, the expansion of the use of the image without the consent of the owner.
The renowned constitutional Minister of the Supreme Court, Luís Roberto Barroso, in your work collision between freedom of expression and personality rights, highlights the restrictive character and outrageous art. 20 of the CC to de1988 Constitution and fundamental rights, as follows:
In fact, the most obvious reading of art. 20 of the new code lead to a direct confrontation with the Constitution: freedom of expression and information are for he emptied; dedicates an invalid abstract precedence other fundamental rights on freedoms in question; and the alleged escape valves for this general rule of preference are clauses that do not resonate any constitutional provision. Anything regardless of this first view, it seems possible to adopt an interpretation according to the Constitution of the device, able to avoid the formal declaration of unconstitutionality of your text. Check out the argument. The interpretation is meant can extract the art. 20 referred to – at the limit of their potential semantics, is right to see – can be described as follows: the device came to make possible the mechanism of prior disclosures ban (until then without any explicit normative prediction) which is, however, Providence entirely exceptional. Your job will only be admitted when it is possible to dispel, in severe and insurmountable, the constitutional presumption of public interest that always accompanies the freedom of information and expression, especially when assigned to the media. IE: contrary to what might appear in a first reading, the dissemination of true information and obtained lawfully always presumed necessary for the proper functioning of the public order and only in exceptional cases, that the interpreter set before facts real unquestioned, can forbid it. This seems to be the only way of making art. 20 of the Civil Code deal with the constitutional system; If you do not understand the device in this way, you will not be able to survive he validly.
To do so, following the general aim of protection of image, there are, in addition, the infra-constitutional legislation as in the Statute of the child and adolescent, Law 8,069/1990, articles 17 and 100, § only; Status of the elderly, law 10,741/2003, art. 10, § 2; Copyright law, law No. 9,610/98, art. 24, VI, 46, (I), "c", 90, § 2; Pelé law, art. 42, par. 1 of law 9,615/98; Marco Civil da Internet, law No. 14/12,965, arts. 10 and 23;
Under new Prism, with regard to the right of the employee's image, article 8 of the consolidated labor laws is based on the hypothesis that gap (BRAZIL, 1943), the common law will be subsidiary source of the labour law, the employment relationship and its limits in the use of the right to the Civil Code, for the Constitution and special legislation.
Art. 8°, CLT administrative authorities and the labour courts, in the absence of legal or contractual provisions, shall decide, as appropriate, in the case law, by analogy, for equity and other general principles and rules of law, particularly labour law, and, Yet, according to the uses and customs, the comparative law, but always in a manner that no class or private interest outweighs the public interest.
Sole paragraph. The common law is subsidiary source of labor law, what is not incompatible with the fundamental principles of this.
5. LIMITS OF THE EMPLOYMENT RELATIONSHIP
Is that the limits of liberty musty expressed will of the employee are proportionally linked to job search and demand on the market, as well as about the economic context of a country. The unemployment data denote flagrant weaker position of the worker in front of the holder of the power of command, subjecting them, often vexatious situations and illegal affront to patent rules and labor guarantees.
This context deprives the worker to express your opinion, losing the right to seek or object constraints of the employer, generating a tax loss and relationship since hiring as during employment contract.
Mozart Russomano Victor (2002, p. 70), conceptualizes the employment relationship as being "the given link that unites, vice versa, the employee and the Manager, under the first legitimate orders from the second through the contract of employment".
As to the legal nature of the employment relationship, there are two theories: anticontratualista and the contract. In summary the anticontratualista is that because the worker does not have autonomy of will in the clauses of the contract, in the face of your hipossuficência, no talking on contract by the lack of parity.
Already the contractualist theory, housed by the CLT in your art. 444 presents the freedom of making of the clauses of the contract, unless the legislation or conventions earlier outrage:
Art. 444-contractual relations may be object of free stipulation of stakeholders in all contravenha not to work protection provisions, collective agreements applicable to them and the decisions of the competent authorities. (BRAZIL, 1943)
This mat, corroborates the contractualist theory art. 468 of CLT, to condition the contract changes to the seat of the parties under penalty of nullity, as noted:
Art. 468-individual work contracts is only lawful amendment of conditions by consent, and yet since not result, directly or indirectly, damages to the employee, under penalty of nullity of the infringing this warranty clause.
Single paragraph-it is not considered a unilateral change in the determination of employer to its employee revert to the position, formerly occupied, leaving the role exercise of trust. (BRAZIL, 1943)
However, striving for national reality, will mitigate the other contractual relationship by CLT, its peculiarities and regulations by the Constitution, the Civil Code and CLT.
José Affonso David Cenciotti Neto (2003, p. 90) is assertive to add that:
(…) the contract of employment is a legal relationship complex, dynamic and caring, but is also seen as a species of bilateral legal business, not your meaning liberal-because the element is volitive abruptly mitigated because it is a contract of adhesion and directed – but in conce exception solidarista recognising the subject of law not as an abstract, virtual but concrete and economically deserving legal guardianship from this inequality.
Thus, the current notion of legal business certainly is no longer the voluntaryist that places it as an act of will that aims to produce legal effects, nor the Objectivist conception of the business is a precept of self-regulation of the private interests.
Furthermore, as a result of the Institute agreement, will highlight its basic principles which cannot be excluded, namely the social function of the contract and the objective good faith by bringing in your midst the concepts of loyalty and transparency of pre-and pós-contratuais obligations , causing the employer present clearly the terms and conditions of employment of the worker, which in turn must abide by them.
The labor system can no longer be more viewed in isolation but as an integral part of a whole, with the Federal Constitution and interpretive Foundation the Civil Code as complementary, reason by which the right to image of the worker should be seen in the Prism Civil-Constitutional.
It turns out that in spite of all the above, comes rising in new business relationships form the employer profits made, however some infringing rights and prerogatives of the worker under the fear of losing their jobs, as well as by the hierarchical supremacy, accepted without be able to externalize your real desire.
Such a situation has occurred in cases where the employer uses the employee's image, without your express prior permission, for commercial purposes, whether through videos, photographs or other means, with the purpose of giving greater prominence to the employer, or in cases of determination of use uniforms with logos of products marketed by the employer without the employee's acceptance or even financial compensation, violating the rights of use of the image, as has the art. 20 of the Civil Code.
In this colaciona-mat if understanding of the celebrated Maurice Godinho Delgado (2012, p. 652) that so asserts:
The image of the individual worker can be violated in two ways: on the one hand, through the aggression to the moral heritage of human beings[…]. On the other hand, through unauthorized use or not reciprocated the image of the individual. That's what provides the art. BAC/20 2002, stipulating compensation for irregular use of the image: ' unless authorised, or if necessary for the administration of Justice or the maintenance of public order, the written disclosure, the transmission of the word, or the publication, display or use of the image of a person may be banned, your application and without prejudice to the damages that fits, if you achieve the honor, repute or respectability, or are intended for commercial purposes ' (Gryphons plus). The legal precept mentions, as one realizes, three pipelines closest to occurrence in the contract of employment: a) conducts that violate the image, in the face of hit her; b) pipelines that use of the image — no offense, of course–but without authorization; c) pipelines that use of the image — no offense — but also without authorisation and for commercial purposes. According to the Civil Code, is applicable to speak on repair indemnity in any of these three hypothetical cases.
In this tune, the Superior Labor Court comes converging in favour of the worker, declaring the duty to compensate for violations the right of personality, as below:
MAGAZINE FEATURE. MORAL DAMAGES. UNAUTHORIZED COMMERCIAL USE AND THE IMAGE OF THE EMPLOYEE. The guarantee to guard his own image is unfounded in personality rights, which are absolute and opposable to all. The right to image your high status to the fundamental plane in art. 5, X, of the Federal Constitution. Insignificant, therefore, any discussion about the purpose of the disclosure of the image. The right to compensation arises from the use of the image of the person, without your authorization. Magazine feature not known. " (RR-243600-57.2004.5.15.0082, first Class, Min. Vieira de Mello Filho, DEJT 28/10/2010) (BRAZIL, 2010)
INTERLOCUTORY APPEAL. MAGAZINE FEATURE. INDEMNITY-MISUSE OF THE IMAGE-USE PROMOTIONAL T-SHIRT WITH LOGO OF SUPPLIERS FOR COMMERCIAL PURPOSES WITHOUT PRIOR CONSENT OF THE EMPLOYEE-MORAL DAMAGE. The reasonableness of the controversial thesis, recommended the revised resource processing for examination of the subject conveyed in his reasons. Further provided. MAGAZINE FEATURE. INDEMNITY-MISUSE of the IMAGE-USE PROMOTIONAL T-SHIRT with LOGO of SUPPLIERS for COMMERCIAL PURPOSES without PRIOR CONSENT of the EMPLOYEE-MORAL DAMAGES (claim of violation of arts. 5, LIV, of the Federal Constitution, 818 of the consolidation of labor laws, 333, I, of the code of Civil procedure and 20, 188 and 927 of the Civil Code and of divergence jurisprudence). Not demonstrated the violation of federal law or device the existence of several theses on interpretation of a legal device, there is no need to determine the following magazine feature on the grounds in subparagraphs (a)-a-e-c-article 896 of the consolidation of labor laws. Magazine feature not known. " (RR-74940-84.2007.5.01.0050, Rapporteur: Minister Renato de Lacerda P., Date of judgment: 15/2/2012, 2nd Class, publication date: 2/3/2012) (BRAZIL, 2012)
[…]"2. COMPENSATION FOR USE OF THE IMAGE. SUPERMARKET. USE OF UNIFORM WITH LOGOS OF SUPPLIERS. The determination of use uniforms with logos of products marketed by the employer, without agreement of the employee or pecuniary compensation, violates your right to use the image, as has the art. 20 of the Civil Code. Such conduct evidence manifest abuse of power steering employer, justify your conviction to pay compensation, with Fulcrum in the arts. 187 and 927 of the same law. Magazine feature is not known. […]"(RR-119700-79.2005.5.01.0021, Rapporteur: Minister Alberto Luiz Bresciani of Fontan Pereira, Date of judgment: 11/4/2012, 3rd Class, date of publication: 13/4/2012) (BRAZIL, 2012)
6. EXISTING LEGISLATION THAT IS CLOSEST
Currently, in the legal sphere, it is possible to find only legislation that deals with the right to image on the employment relationship, today known as the Pelé Law (9,615/98), by which it was bound, expressly, to professional athletes, one of several the rights of image, arena, among others.
The right to the arena is laid down in art. 42, par. 1 of law 9,615/98 and focuses on the athlete's participation in sports entity values obtained by the sale of the transmission or retransmission of the games in which he's acting, whether as holder or as reserve.
Have the right to the image, which in the course of this article, is an individual right inherent to be, so the sportsman, which can be transacted, with some limitations, objectively between you, or the company owner of the image rights of the same, with the football club, through cash amounts and specific regulations agreed on a joint basis between the parties.
7. SPECIFIC LEGISLATION
As you can see, you need great effort, as well as cognitive and interpretative permeate broad legislation to achieve an understanding of the due protection of the worker image that still have found placements heated defending both sides, of the entrepreneur and of the employee.
Furthermore, in view of the increasing exploitation of the misuse of the image of the employee in obtaining higher profits, essential to the elaboration of legislative devices integrate the consolidation of labor laws, addressing the theme of the right to image in labor relations, Since the underprivileged in the relationship is the employee, what then would bring equality among the judges.
Thus, it is the duty of Congress to solve the problems arising in society, developing law that sane the differences. This stanchion, talk about conflicts that can be generated between the federated entities since it's private competence of the Union to legislate on civil, commercial, criminal, procedure, agricultural, marine, aeronautical, space, and work, as well if extracts from the art. 22 of the Magna Carta.
Nowadays we have as closest paradigm the law 9,615/98 (Pele), which deals with a relationship of employment and right to very specific image, which represents a small slice of the ordinary labour relations front, running, instead of the needs of this mass workers higher.
This treadmill, compared with the imbalance of the parties to the contract of employment, also it is necessary to create protection instruments and pairing of the parties at the time of negotiation of the image, as well as of control parameters and compensation in the event of your breach, seeking pragmatism and speed that denotes the labor legislation
FINAL CONSIDERATIONS
By analyzing the notes made in the present study, the conclusion that protect the right to employee's image is nothing more than respect the dignity of the human person, to be a fundamental right and therefore eternity clause.
However, as delineated the personality rights, the right to image, despite having characteristics of being unavailable, absolute, General, off balance sheet, imprescriptible, always exempt and life, it may have such attributes qualified, and through the transfer of use of the image market within a stated period, provided that prior consent of the rightholder.
Furthermore, in view of the above-described features of the right to image, extract that profit on the image of the worker without your permission tipificaria in illicit enrichment without cause, doing the duty indemnity.
In the current working relationships, the worker has been subject to nearly all the charges made by the employer, given the growing framework of unemployment, weaker position and tying, causing the exploitation of the image of the worker is just another outrage.
So, facing the need for State response to emerging problems, it is necessary to create legislative mechanisms to fill gaps in the labour field, so that the rights and privileges are in fact protected.
Finally, in view of the strict liability that arises from the legislation regarding the right of image, we indemnify the where is disrespected with or without profit, always seeking the protection of the dignity of the human person.
REFERENCES
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[1] Final College law school Martha Falcão – Devry presented as curricular component of discipline Monogafia II, presented by profª Ilsa Valois. Advisor: Prof.. Post Doctor Mauro Braga.
[2] Postgraduate course in Labor Law
