The Right to an Image of the Worker [1]

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The Right to an Image of the Worker [1]
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ARAUJO, Camila Jarahy [2]

ARAUJO, Camila Jarahy. The Right to an Image of the Worker. Multidisciplinary Scientific Journal. Edition 08. Year 02, Vol. 02. pp. 53-63, November 2017. ISSN:2448-0959

SUMMARY

The purpose of this study is to discuss, in view of the absence of a regulation that covers the right to the image of the worker, to analyze the legal protection given to the image to which the employee is entitled. By analogy, the existence of the right to the image concerning the employee can be proven, since this right already exists in specific cases in relation to the employment relationship, as well as the fact that it is a fundamental right guaranteed by the Magna Carta. It is also necessary to speak in Civil Law, which establishes the right over the image, from a civilian point of view, as well as its violation and due indemnity. The authorization given to the employee for the due use of his image, as well as the indemnification of the same when done in an expensive way to the human being, or even to that honorable but without the authorization of the same. The main focus is to present the needs of the creation of specific legislation that works on this point, making the use of the right to image only in a costly way: either compensation or compensation.

Keywords: Labor Law, Employee, Right to Image, Civil Law, Personality Law.

1. INTRODUCTION

It is not today that we have heard the saying, "Advertising is the soul of business." It is well known that good publicity has a great influence on the decision-making power of a consumer. We could mention big jargon in this industry, which is growing more and more in the country, such as "beautiful shirt, Fernandinho" or "there are things that only Philco does for you", and the latest one "comes to the streets".

With the advent of the internet and the popularization of it, advertising has gained an extra force in spreading the brand of a product. A survey recently conducted by Nielsen | Global Study, conducted in 2013, has shown that Brazilians are strongly influenced by advertising. It was also made a comparison between the Brazilian population and other countries of Latin America, it was realized that the persuasion exerted by the propaganda in the Brazilian people is superior to that caused in other peoples, of other nations.

To become a big company, advertising needs to be allied to this development, an example of which are the millionaire and often billionaire investments that companies make, such as Coca-Cola, which invests 14% of its advertising revenue ; Casas Bahia invested 3%. And it is at this time that retail companies, wholesalers, stores in general, come to the fore in this machine to spread ideas called advertising. The Brazilian retail trade is the segment that invests the most in advertising in the country, a survey taken from the Arcos.org website revealed that in 2007 the amount was R $ 4.382 billion.

Starting from this premise, and brief analysis on the investment made in advertising, is that we got to the pawn in this game of chess. Always seeking to reach the consumer, even if it is a subliminal way, companies have been investing in the disclosure of their product, and obviously pay for it, which value, as seen above, is not small. In this way, the employees of companies that receive this amount to divulge third-party products are having their image explored.

The right to image is increasingly receiving the attention it deserves due to this technology explosion that has emerged in recent years, and increasingly develops with an unremitting agility. The Constitution in 1988 already defends this right as being a personality right which has the following definition: "the rights of the personality are defined as those that have as their object the physical, psychic and moral attributes of the person in himself and in his social projections ".

The Civil Code provides in its art. 20 that the right to the image should rather be indemnified in the use without authorization of the owner, even if that use has not been harmful to the employee, because the simple use of the image is already the damage itself. In the absence of a specific legislation, since the only existing one applies only to the sport area, companies increasingly exploit the image of the employee, in exchange for which they will be able to reap the full profit from that exploitation.

Therefore, it is necessary to emphasize the importance of a legislative interference so that we can give the employee the respect due to his image, watching over it.

2. THE EVOLUTION OF THE RIGHT TO IMAGE IN THE JURISDICTION

The image seen as a right to be protected has grown in relevance to try to keep up with the technology inherent in the media, especially as it relates to the advancement of the internet, which is increasingly accessible.

The Court of São Paulo was the first to deal with the matter directly, protecting the right to the image explored in a vehicle of communication against the will of the photographed. The sixth civilian chamber of the TJ of the state of São Paulo unanimously decided that "no one can be photographed against his will, especially to be a pivot of scandals."

It is worth mentioning that the aforementioned decision was made well before the appearance of the Federal Constitution, dated 01.04.1949. The basis used for this was art. 666, X, of the Civil Code of 1916, having the effect of preventing the disclosure of the image without the consent of the photographed.

After the aforementioned fact, the law of authorship (year xxx) was created in Brazil, which protects the rights of the works and not the author. The STF, in 1982, has positioned itself fundamentally for the jurisprudential construction of the right to image in Brazil:

COMMENT OF THE JUDGMENT OF RE 95.872 – RAPPORTEUR MINISTER RAFAEL MAYER. RIGHT TO IMAGE. PHOTOGRAPHY. COMMERCIAL ADVERTISING. INDEMNITY. Disclosure of the person's image, without his or her consent, for the purpose of commercial advertising, implies unlawful locution at the expense of another person, who imposes reparation.

From the narrated facts, the pacification of the subject arises through the 1988 constitutional text, which establishes in its art. 5o the right to the image as the fundamental right of the person. In 2002, with the validity of the New Civil Code, the right to the image gains strength with art. 20, in which an indemnification attribution is found for the misuse of the image, even if it has not occurred in a dishonorable way.

3. THE RIGHT OF IMAGE UNDER CIVILIAN OPTICS

The right to the image derives from the right of the personality whose main characteristic is to protect human dignity. The Civil Code deals with the subject with mastery, demonstrating in its scope basic characteristics of this right, being able to be found of article 11 to 21.

It is also perceived the unavailability of this right, as well as its non-transferability, nonrenounceability and difficult pecuniary estimation, as discussed in article 11 of the CC.

Therefore, every person has his right to the protected image, being a person well-known, popular or not. Your image may not be used without proper authorization for commercial or advertising purposes, except for informational or journalistic purposes.

In cases of disrespect to the personality regarding the right to the image, the injured party may have the threat terminated through a judicial order, claiming indemnification concerning the unauthorized and unauthorized use of their image.

According to Roberto Senise Lisboa, (2002: 191) "Thus, the holder of the right to the image can lawfully extract economic benefit, as an exception to the rule of extra-patrimoniality."

Therefore, the company that uses the image of an individual for publicity and economic gain, without authorization from it, must repair the injured party with the appropriate indemnity.

4. THE PROTECTION OF THE EMPLOYEE'S IMAGE IN EMPLOYMENT RELATIONS

The exploitation of the image of the employee is increasing, due to the number of competitors that enter the market. The companies seek to publicize their brand, their products, and in exchange for this disclosure has its revenue in increasing expansion.

From this premise, one perceives an improper exploitation of the image of the employee, exposing the individual to divulge products offered, promotions, finally, making the human being a walking outdoor. In this sense, CARPES (2003) records:

In fact, the right to image has a double content: morality, since it is personality and property law, because there can not be undue locution on the part of the employer. This patrimonial content is opposed to economic exploitation. The right to repair the damage arises exclusively from improper use of the image, and it is not necessary to prove the damage.

The employee to be hired by a certain company does not stipulate in his contract the assignment of his image, much less receives for it. Your employment contract, as a rule, does not cover the use of your image for commercial purposes, nor does CLT deal with a particular topic. Therefore, if the company wants to advertise its product, or promotion, or any other type of service, it would theoretically hire a company for this purpose, models to act, among other items.

Therefore, it is not absurd to say that the employee is being visibly impaired, because with the disclosure the company has an increase in sales, which is not passed on to employees. In this sense, the jurisprudential understanding has grown, as demonstrated by a judgment of the Regional Labor Court of the 15th Region:

MORAL DAMAGE. COMMERCIAL AND UNAUTHORIZED USE OF THE EMPLOYEE'S IMAGE. PROCEDÊNCIA. Under article 5, X, of the Federal Constitution and article 20 of the Civil Code, commercial and unauthorized use of the employee's image must be indemnified. The use of the image does not fall within the normal activities of the worker, avoiding the rule of article 456 of the CLT. In addition, the employee is not required to oppose the fact in the course of the employment contract, since such an attitude could make his permanence in employment impossible. Appeal of the claimant provided.

4.1 Existing specific legislation

Currently, in the legal sphere, it is possible to find only legislation that deals with the subject, now known as Lei Pelé (9.615 / 98). Through it was determined to professional athletes, among many other rights, the rights of image and arena.

The right of arena is provided in art. 42, paragraph 1 of Law 9.615 / 98, and refers to the participation of the athlete in the values ​​obtained by the sports entity with the sale of the transmission or retransmission of the games in which he plays, either as a holder or as a reserve ..

Already the right to the image is a very personal right and negotiated directly between the player, or the company that owns the rights of the same, with the soccer club, through values ​​and rules that are freely stipulated between the parties.

4.2 Jurisdiction of the Labor Court

The Labor Justice Competence is delimited in article 114 of the Federal Constitution. With the advent of constitutional amendment no 45/2004, the wording of the cited article was changed, giving a greater amplitude to the themes pertinent to Labor Justice.

Prior to the cited Amendment, there was a discussion in the doctrine and jurisprudence about what would be the competence in cases of image right in relation to the employee. This discussion was corrected with the adjunct of amendment 45.

Therefore, the competence to judge this case is the Labor Court, since the damage to the image was due to a work or employment relationship:

CIVIL LAWSUIT. NEGATIVE CONFLICT OF COMPETENCE. COMMON JUDICIAL STATUS AND LABOR. STOCK COMPENSATION FOR MORAL DAMAGES. PUBLICATION OF FOOTBALL PLAYER PHOTO IN FIGURINHAS ALBUM. LACK OF AUTHORIZATION. DENUNCIATION TO THE LIDE OF THE EMPLOYER CLUB. AGREEMENT FOR THE CESSATION OF THE RIGHTS OF USE OF THE IMAGE OF CLUB PLAYERS, HELD BETWEEN THAT AND THE EDITOR. ALLEGATION THAT EMPLOYEE WOULD HAVE AUTHORIZED THE USE OF YOUR IMAGE BY THE CLUB.

  1. It is the responsibility of the Labor Court to sue and adjudicate an action for compensation for material damages and compensation for moral damages filed by a football player against a publisher who has published, without authorization, his photo in the album of cards. The defendant denounced the soccer club's employer because of the fact that he entered into an assignment agreement with the transferee, as an assignee, by means of which the club ceded the use of image of its players, as well as as it was responsible for any damages alleged on account of its placement.
  2. If the denounced club with which the author entered into a work contract (incontrovertible fact) alleges that the latter authorized the use of his image expressly although he does not mention in what opportunity and in what form the consent was operated, even if he could give it it is possible to analyze the responsibility of the publisher for the alleged infringement without considering the existence of this alleged authorization carried out in the context of an employment relationship. Being in the contract of employment or in the contract of transfer of image rights, it is imperative to analyze the terms in which it was agreed and whether or not a specific clause was foreseen for the exploitation of the image of the author as a football player.

Conflict known for the purpose of declaring the jurisdiction of the 16TH SQUARE OF THE LABOR OF BELO HORIZONTE MG.

4.3 Proposal for specific legislation

With the increasing exploitation of employee misuse in order to obtain a higher billing, it is necessary to elaborate a specific legislation for the subject addressed, since the hypersufficient in the relation is the employee, being incumbent on the state power to positivize this right, bringing thus an equality between the judged.

Thus, it is the duty of the State, through its constituent, to elaborate a law that will heal the existing differences. It is not necessary to speak of conflicts that can be generated between the federated entities since it is the exclusive competence of the Union to legislate on:

Art. 22 It is the exclusive responsibility of the Union to legislate on:

I – civil, commercial, criminal, procedural, electoral, agrarian, maritime, aeronautical, space and labor law;

To be based on the creation of specific legislation, it will be necessary to use the Pelé Law itself. It is worth emphasizing that, because the right to the image is an inalienable right, it is of fundamental importance to stipulate a term of use of the image of the employee by the employer.

More important than the remark made earlier, is to provide a minimum amount for the employee's reimbursement when authorizing the employer to use his or her image. Well, it is known of blackmail made by the employer before the employee, so that it can be admitted.

Therefore, in order to avoid frauds that may exist, such as coercion, and in view of the fact that we must always seek to safeguard the right that is being discussed, there must be a stipulation of a costly existence for the provision of a right belonging to the individual.

FINAL CONSIDERATIONS

When analyzing the notes made in the present study, we conclude that protecting the employee's right to an image is one of the ways to achieve the true dignity of the human person.

It is noticeable the importance of work for man, it is a bridge to seek the achievement of dreams, achievements, for mental and physical health, as for other goals that each one has. It is worth mentioning that the Constitution itself considers it as the Fundamental Right of the human being. It is up to the legislature to seek more and more to protect this right and avoid abuses by the employer.

The right to the image can not be unequal, since it is part of the same level as the right to work, and therefore it is of vital importance a sanction applied for whoever violates this right of another. Even if the employment contract involves the subordination of an employee to the employer, the authorization of the use of the image must be made in an express and costly manner, in order to guarantee the employee's right.

In cases of breach of prior authorization, the employee who has had his or her image used for profit or not for the company should be indemnified, always seeking the protection of the dignity of the human person.

REFERENCES 

BRAZILIAN ASSOCIATION OF TECHNICAL STANDARDS. Citation: NBR-10520 / Aug-2002. Rio de Janeiro: ABNT, 2002.

GAGLIANO, Pablo Stolze and FILHO, Rodolfo Pamplona. New Course of Civil Law: general part. 1. São Paulo: publisher Saraiva, 2002.

THANK YOU. Course of labor law. 13. São Paulo: LTr publisher, 2014.

LEITE, Carlos Henrique Bezerra. Course of Labor Procedural Law. 12. São Paulo: LTr, 2014.

LISBON, Roberto Seniste. Elementary Manual of Civil Law. 2. São Paulo: editor of the Revista dos Tribunais, 2002.

trt-3.jusbrasil.com.br/jurisprudencia/124286779/recurso-ordinario-trabalhista-ro-519201201103007-000519-1620125030011

www.argos.org.br/artigos/quem-sa-s-anunciantes-na-propaganda-brasileira

www.autor.org.br/juridico/imagem-costaneto.pdf

www.mintdigitall.com.br/blog/2013/09/06/-forca-da-propaganda

[1] Research project presented to the Department of Postgraduate and Extension of Anhanguera Uniderp, as a partial requirement to obtain the degree of specialist in the course of Labor Law. Oriented: Rafael Altafin Galli.

[2] Postgraduate course in Labor Law

 

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