Carla Zambelli is fined for not paying compensation to Tom Zé

Federal Deputy Carla Zambelli (PSL-SP) was fined by the São Paulo State Court for bad faith’s litigation, an irregular judicial practice that occurs when a person files successive appeals with the evident and uncontested intention of merely prolonging a judicial process to avoid complying with the punishment determined by the Court.

The case concerns a lawsuit (number 1072763-75.2020.8.26.0100) for compensation for material and moral damages that began on August 13, 2020. It is an action in which Zambelli is the defendant, and the authors are the musicians Tom Zé and José Miguel Wisnik.

:: Wisnik, Tom Zé repudiate Pocketnarista deputy for misappropriating a song ::

The reason: the parliamentarian released a propaganda video on her social networks about the role of President Jair Bolsonaro (no party) in the Northeast region. The advertising piece was a collage of images from billboards and of agglomerations caused by the former army captain, as well as excerpts from some speeches given by the president, using the music Xiquexique (by Tom Zé and Wisnik) as a soundtrack.

Zambelli never even contacted the musicians to inform them that he was appropriating the song to advertise for Bolsonaro, let alone pay any amount to the copyright owners of the work for their use of their intellectual property. Result: has been processed.

On March 10, 2021, Judge José Carlos de França Carvalho Neto issued a sentence in the first instance, condemning Zambelli to pay R$ 65,000 in compensation for material and moral damages to the harmed artists, in addition to their legal costs . The court decision contains:

Given the evident disrespect to the moral right of co-authors Tom Zé and Wisnik, enshrined in art. 24, item II, of Law No. 9,610/98 (unlawful act), and assuming the moral damages, it is also necessary to accept the request for conviction of the defendant to pay indemnity for moral damages.

But the deputy did not consider anything evident, nor did she accept the sentence, and filed an appeal, taking the case to the second instance of the São Paulo Court, forcing a group of three judges to look into the case, to judge the matter again .

In her appeal, the congresswoman surprised the magistrates with the arguments she used. She did not deny having appropriated, without authorization, the work of Tom Zé and Wisnik, but said that she used the video she produced with the song only on her private, personal, private networks.

“The video was in no way used for political engagement, on the contrary, it was used for information purposes,” Zambelli told the São Paulo judges.

She said more: “If the broadcast were of political interest, with the objective of political engagement/campaign, as a Federal Deputy, I would have used the party’s social networks for that purpose.”

And he asked: “I just wanted to praise the Northeast region with typical music and demonstrate the relationship of the current president with the region. That means that any user of social networks who uses music, excerpts from books and others, is subject to copyright conviction?”

:: Also read: Deputy Carla Zambelli receives subpoena to testify about undemocratic acts ::

All of this is contained in the records of the process, which are public and can be consulted by any citizen. Result: it lost again, by three votes to zero, in a judgment (second instance court decision) handed down by the São Paulo State Court on July 27 this year.

The magistrates, in the judgment they delivered, show discomfort with the arguments presented by the deputy, classified as “absurd”. See the excerpts below:

– There is nothing informative in the video. It’s a succession of images from billboards and crowds, as well as excerpts from some speeches. There was professional production and editing of the video.

There is mention of the purchase of chloroquine on one of the billboards that appeared in the video. The scientific community has never considered this remedy effective against the coronavirus that causes COVID-19, which also dismisses the claim that the video was informative and that it contributed to the discomfort of coauthors when they found themselves associated with a evidently and knowingly mistaken public policy.

Because of its political nature, the video needed to have a wide reach, and the defendant has 5.5 million followers on the three digital platforms. Thus, there was no reason to show the video on the platforms of the political party to which the defendant belongs. In this context, to claim that the video had a private purpose is absurd.

Excerpt from the judgment that condemned Carla Zambelli: judges say their arguments were absurd, but the deputy decided to continue litigating / Court of Justice of São Paulo

The judgment upheld the amount of compensation due and doubled the amount that Zambelli should spend as legal costs for Tom Zé and Wisnik, in order to discourage the deputy to file a new judicial appeal, unless she really had cause or argument with some legal value.

But the deputy thought it best to continue litigating, that is, offering new resources to the Court and delaying the payment of the compensation due. On August 30 this year, lawyer Karina Kufa, judicial representative of Carla Zambelli, filed a new appeal against the judgment, called declaratory embargo, requesting that the judges return to address the issue.

According to the lawyer, the improperly appropriated part of the song was too short (33 seconds, taking up half of the broadcast video). In addition, there would be a series of “omissions in the appealed decision, due to lack of confrontation” of the arguments presented by the deputy in the lawsuit.

The lawyer also said that the amount of compensation decided was too high, as Zambelli had not violated, in his posts, the rules of Twitter and Facebook:

“Aspects that evidence the Appellant’s good faith were disregarded, such as, for example, full respect for the norms of the social networks in which the video was broadcast”.

At this point, the Court thought it was enough.

In a new ruling, published in the Official Gazette of Justice on the 7th of this month and reported by judge Miguel Brandi, the third consecutive defeat was imposed on Zambelli in the case, including in the decision a new conviction, in the amount of R$ 10 thousand, for litigation in bad faith, that is, filing successive procedural appeals without any chance of success or legal standing, with the clear intention of delaying the conviction and continuing to occupy the gears of Public Justice.

The deputy also bitterly received, in the wake of the conviction, a series of reprimands for her defense of procedures to combat the covid pandemic in Brazil. Read excerpt below:

“The deputy associated the music of the embargoes (Tom Zé and Wisnik) with the federal government’s disastrous health policy, which in itself causes unjustified harm to them.

Indeed, no one in good faith wants to be associated with lack of vaccination, scandals in the purchase (or not) of vaccines (as revealed by the CPI of Covid-19), unnecessary clusters during a pandemic which depends on social contact to spread and to about 600,000 deaths, the vast majority of them preventable.”

In a decision that imposed the third consecutive defeat on Carla Zambelli in the same case, judges included in the judgment criticism of the procedures defended by the deputy in relation to covid-19 / São Paulo State Court of Justice

If you want to continue litigating in the process, Brazilian law still allows the deputy to do so, but now only in the superior courts of Justice, in Brasília. Meanwhile, interest and accruals are incurred for late payment (delay) in the amounts owed by it.

Other side

O Brazil in fact contacted Carla Zambelli so that she could comment on the case. The report sent the following questions to the parliamentarian:

– You suffered a third defeat in the São Paulo Court, this time in a declaratory embargo opposed to the judgment. What did you think of the decision?

– Do you intend to take the case to the higher levels of the Brazilian Justice?

– In your appeal to the lower court decision, you claimed that the broadcast video was not intended for political engagement or public interest, as it was broadcast on your private social networks, and not on your political party’s social networks. Does this mean that none of your publications on your social networks have political purposes, being merely private?

– If so, who produced the above video? Were office staff used to produce the allegedly private video? If so, did they do it during working hours and using the Chamber of Deputies and publicly owned IT equipment?

Until the publication of this report, there was no response. If the congresswoman expresses herself, her statements will be included on this page.

Edition: Leandro Melito and Vinícius Segalla

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