The Brazilian Visual Arts Market

The visual arts market in Brazil is becoming increasingly professional and vibrant, driven by the maturation of artists, galleries, art fairs, cultural institutions and collectors. As this market evolves, new issues and practices arise, demanding legislative action to enact new regulations and promote the adoption of best practices.

The 7th Sectoral Survey of the Art Market, conducted by the Brazilian Contemporary Art Association (ABACT) and ApexBrasil in 2023, revealed an expanding market with a sales volume of USD500 million, reflecting a 21% increase compared to the previous year. According to the Art Basel and UBS Global Art Market Report 2024, Brazilian sales account for 0.89% of global market sales.

Moreover, the works of Brazilian artists have witnessed significant appreciation over recent decades.

Artists Tarsila do Amaral, Mira Schendel, Lygia Clark and Helio Oiticica have been fundamental for the increased attention to Brazilian artists. In 2019, the painting A Lua, by artist Tarsila do Amaral, was acquired by the Museum of Modern Art (MoMA) for USD20 million. In 2020, the painting A Caipirinha, by the same artist, sold for USD10 million at Bolsa de Arte in São Paulo. Other record sales include Contra relevo (Objeto No 7) by Lygia Clark, which sold at Phillips NY in 2013 for USD2.2 million, and the painting Mulher deitada com peixes e frutas by Emilio Di Cavalcanti, which sold at Sotheby’s in 2017 for USD1.5 million.

The technological evolution of marketplaces and the advancement of support techniques used by artists were responsible for a significant online sales increase, surging from 8% in 2018 to 20% in 2023. The evolution of the digital market and the use of artificial intelligence (AI) present new challenges for the art market in Brazil, particularly concerning artists’ copyrights.

Legislation and Best Practices

Brazil lacks a unified legal framework for the visual art market. Instead, its practice is based on dispersed legislation applicable to the cultural sector and, more specifically, to the visual art market.

Brazilian Copyrights Law: Artist’s Rights

Freedom of expression and image rights

The freedom of expression and image rights of the artists themselves, as well as copyrights, are fundamental individual rights guaranteed by the Brazilian Federal Constitution. The protection of these artists’ individual rights is extremely important for the visual arts market.

Image rights ensure the inviolability of people’s privacy, private life, honour and image, establishing that any violation of these rights entitles the affected party to compensation. This protection is particularly relevant for artists, who often seek to prevent the unauthorised commercial use of their image in books, catalogues or on the internet.

Conversely, artists must also respect the image and privacy rights of individuals who are photographed, painted or otherwise depicted in their works. In a recent court case, a woman filed legal action against a renowned artist and a prestigious museum in São Paulo for producing and exhibiting, without consent, an artwork depicting her image in a nearly nude state. The court ruled in favour of the plaintiff, ordering the removal of the artwork from the exhibition and mandating compensation for damages.

Copyrights

The Copyright Law protects an artist’s intellectual property in the Brazilian legal system. Following Brazilian law’s tradition of affiliation with Roman law, this legislation is based on civil law, which emphasises the author’s rights (droit d'auteur).

Pursuant to the Copyright Law, the authors of intellectual works, including visual artworks, hold moral and economic rights over their work. Artists have control of determining how to create, reproduce and economically exploit their artworks throughout their lifetime. These rights are transferred to the artist’s heirs and remain valid for an additional 70 years, commencing on January 1st of the year following the artist’s death. Once these rights expire, the artwork may be freely reproduced by any third party.

Moral rights

An author’s moral rights are inalienable and non-transferable. They include the rights to:

• claim authorship of their work;
• have their name or pseudonym acknowledged when the work is used or reproduced;
• maintain the unpublished work;
• ensure the integrity of the work, opposing any modifications or acts that could harm the work or damage the author’s reputation or honour;
• modify the work;
• withdraw the work from circulation, even if its use was previously authorised, if the author believes that such circulation or use could harm their reputation or image; and
• access a unique and rare copy of the work when it is legitimately held by others, to photograph or film the work to preserve its memory.

Additionally, the author may repudiate the authorship of a work if it is modified without their consent during or after the execution of an artwork. This moral right is expressly included in contracts where commissioned artworks (site-specific works) are created by the artist and executed by the purchaser or contractor of the artwork. Contracts involving third-party suppliers must be carefully drafted to ensure that the artwork remains faithful to the artist’s project or design.

Legal battles regarding the authenticity of falsification of artworks are very common, especially after the artist’s death. Therefore, it is of extreme importance for an artist to issue, and for the collector to request, a certificate of authenticity for each artwork. It is also essential for the author’s heirs to organise the author’s legacy and clearly designate the legitimate authority responsible for issuing this certificate after the artist’s passing. Bill 5362/2023 aims to establish a legal framework to avoid the falsification of artworks and to assure the integrity of the Brazilian art market. One of its proposals is to mandate the issuance and registry of certificates of authenticity for artworks valued at over USD10,000.

Economic rights

Each of the author’s economic rights must be explicitly assigned or transferred by the author of the artwork to any third party aiming to utilise it. The artist’s economic rights over their work – the use of which is subject to the artist’s prior authorisation – include:

• partial or complete reproduction of the artwork;
• publication, in any journal, magazine, website or social media;
• adaptation and any other transformations;
• direct or indirect use of the artwork through sound or television reproduction, public transmission, exhibition in audio-visual, cinematographic or similar works, as well as any form of communication or display of the artwork;
• inclusion in databases, computer storage and any form of data archiving, including internet platforms; and
• any other existing or future modalities of use.

When purchasing an artwork, the buyer has the right to display it in a private art exhibition or to exhibit it for sale. However, any reproduction of the work – even in a collection’s catalogue, book or website – requires the artist’s prior formal authorisation.

The reproduction of the artwork is allowed without the artist’s prior authorisation in some cases – such as publication in newspapers, magazines, artists biographies or articles for informative or non-profit educational purposes – provided that the artist’s name and the title of the artwork are mentioned in the article and that its use is not strictly for commercial purposes.

Therefore, any use of an artist’s artwork by a third party, including museums, cultural institutions or private collections, shall be contingent on formal, written authorisation, a licence or a contract for the assignment of copyrights, which must explicitly specify which of the artist’s economic rights are being assigned, licensed or authorised and the term of such permission.

Exceptions to copyright infringements and fair use

As mentioned above, in Brazil direct copies or non-authorised reproductions of artworks without the artist’s prior authorisation are considered infringements of the Copyright Law. 

However, the Copyright Law establishes that reproducing a small part of a pre-existing artwork or reproducing an entire artwork in certain cases is not copyright infringement, as long as the reproduction of the original artwork itself:

• is not the main subject matter of the new artwork; and
• does not compromise the normal exploitation of the reproduced work or unjustifiably harm the author’s legitimate interests.

Paraphrases and parodies are also permissible provided they do not constitute direct reproductions of the original work and do not damage its reputation or integrity.

In addition, artworks permanently situated in public spaces can be freely reproduced and represented in paintings, drawings, photographs and videos, provided such artworks are not reproduced with any commercial intent.

The codification of exceptions to copyright infringement is essential as legal frameworks must evolve to align with contemporary artistic practices. In the modern artistic landscape, new works often derive inspiration from pre-existing creations, and an absolute restriction on an artist’s ability to build upon prior works could have a profoundly detrimental impact on artistic expression and cultural development. Accordingly, contemporary artworks are frequently created through appropriation, partial reproduction or reference to existing works displayed in the real or virtual world. Such artistic expressions should be acknowledged and embraced, provided they comply with fair use principles. As the Brazilian artist Hélio Oiticica once stated, “the museum is the world”, emphasising that the world itself serves as the foundation for artistic creation.

The freedom of expression of the contemporary artist in this context is subject to the moral and economic rights of the original author, including the right to preserve the integrity of their work and prevent reproductions that may harm its legitimate exploitation. Therefore, for a new work to be accepted without the original author’s prior consent, and to avoid legal disputes regarding plagiarism, it is essential that the new artwork is transformative and aligned with the artist’s trajectory, career history, style, research and techniques.

As currently the courts in Brazil have passed no final judgments on visual art cases regarding copyright infringement, US and UK legal precedents are drawn upon. The authors’ law firm recently participated in a case in which a Brazilian artist exhibited a painting at an art fair based on a commercial photograph previously published in a magazine. The original photographer filed a legal action against the gallery and the artist, alleging plagiarism. The defence was based on the fair use of the photographs by the artist, and argued that the new work created by the artist was transformative and aligned with the artist’s curriculum and practice.

The case was ultimately dismissed on procedural grounds, without the judge addressing the merits of the case. Pivotal to this firm’s research were notable cases adjudicated in US courts based on the concept of fair use, as codified in the 1976 US Copyright Act, such as:

• The Andy Warhol Foundation for the Visual Arts Inc v Lynn Goldsmith;
• Cariou v Prince
• Rogers v Koons; and
• Blanch v Koons.

The central aim of the fair use concept in US legislation and doctrine is to allow new artworks to be created based on existing works, provided there is a legitimate “fair use” of the original material.

While the fair use rule is not explicitly codified in the Brazilian Copyright Law, it has been partially absorbed, as reproduction is allowed – for instance, for parodies or when the reproduction is transformative and does not harm the normal exploitation of the original work. However, as previously noted, Brazil lacks sufficient doctrine and jurisprudence specifically addressing cases in the visual art field. Therefore, the correct understanding and application of the US fair use doctrine and case law are essential for the Brazilian art scene, as it is difficult to imagine artistic production and innovation without contemporary artists drawing upon the wealth of existing works in the world.

AI versus artists’ rights

The use of AI to generate artworks has raised numerous questions and implications concerning intellectual property, since AI systems often rely on pre-existing artworks available on the internet and process data from various sources. The Copyright Law was enacted at a time when the internet was in its early stages and does not explicitly address the challenges posed by emerging technologies such as AI; as such, it requires interpretation in the context of modern advancements, including AI systems, and must also comply with the Brazilian data protection regulations (the LGPD Law) and the law governing the digital landscape (the Internet Bill of Rights).

With generative AI now taking a central role in creative processes, it is imperative to promote the ethical and responsible use of AI by human creators.

Bill No 2,338/2023, which seeks to regulate the development and responsible use of AI in Brazil, has already been approved by the Senate and is currently under consideration by the House of Representatives.

This bill establishes that automated works – such as extraction, reproduction, storage and transformation in data and text mining processes by AI systems – should not be considered copyright infringement when used by organisations, research institutions, journalism, museums, archives and libraries, provided certain conditions are met, such as that:

• the use is not aimed at the mere reproduction of the original work itself;
• the use is limited to what is necessary to achieve the intended purpose;
• it does not unjustifiably harm the economic interests of the rights-holders; and
• it does not compete with the normal exploitation of the works.

However, additional provisions need to be proposed to balance innovation, intellectual property protection and fair use within the context of AI technologies.

In comparison, copyright cases involving AI in the USA have been evolving through court decisions and the US Copyright Office’s interpretation of existing laws. Notably, in cases such as Théâtre D'opéra Spatial (2023), the US Copyright Office ruled that works created solely by AI, without significant human input, are not eligible for copyright protection. The office has consistently stated that copyright requires human authorship and works generated entirely by machines do not meet this criterion. However, when there is substantial human creative contribution, even if assisted by AI, the work may be eligible for copyright protection. This stance reflects the ongoing challenge of determining the boundaries of human creativity in the age of AI.

While the US and Brazilian approaches share common concerns about the balance between innovation and copyright protection, Brazilian Bill No 2,338/2023 is more explicit in allowing data mining and AI-assisted works in certain contexts, recognising the need for flexible rules that accommodate the evolving digital and technological landscape. However, like the USA, Brazil’s legal system faces the challenge of defining the role of human creativity in AI-generated works while ensuring that the rights of creators are not unduly compromised.

Resale royalty right

Direito de sequência, the Brazilian resale royalty right, is a highly relevant topic in the Brazilian art market today. This economic right of authors and their heirs is explicitly enshrined in the Copyright Law; however, it has not been broadly disseminated, nor is it widely enforced or collected in Brazil. Pursuant to Brazilian legislation, artists have the right to receive 5% of the resale price increase of an artwork they have created in the event of any resale with profit (capital gain).

This provision allows artists to continue sharing in the proceeds from the sale of their artworks, and ensures compensation for their ongoing efforts to develop and refine their work, as well as the continuous investment in their professional careers. According to the Copyright Law, the artist should receive this royalty at the time of the resale of the artwork. If not received at that time, the seller is responsible for the custody of the amount due to the artist.

In reality, the resale right is rarely paid to artists or collected by sellers in Brazil. This is because, until recently, many sales were conducted between private collectors, and the owners (sellers) often lacked sufficient information or documentary evidence regarding the value of the acquisition of the artwork to calculate the resale royalty right.

In April 2022, art galleries addressed the resale right, through ABACT and the Association of Art Galleries of Brazil (AGAB), which represent dealers and agents in the secondary market.

ABACT and AGAB recognised the need to establish fair procedures and criteria for applying the Copyright Law concerning the resale right, and urged galleries to come to an agreement with artists regarding the subject. The guidelines issued provide that if it is not feasible to determine the price increase, the resale right would be calculated based on a presumed price, corresponding to 50% of the net resale value, after deducting the commissions of intermediaries.

As allowed in the Copyright Law, authors and their heirs may establish associations to collect amounts owed regarding reproduction of the author’s artworks and the resale royalty right. Associação Brasileira de Direitos de Autores Visuais (AUTVIS) currently represents many visual artists and their heirs for purposes of collecting their resale rights. AUTVIS has formulated guidelines for the calculation of the percentage of capital gain (between 1% and 3%) applicable to the resale of artworks. The amounts owed shall be paid to artists who are affiliated with such associations.

In practice, there is no consensus regarding the percentage to be applied in the payment of the resale right. Private negotiations often result in contracts between galleries and artists or heirs, establishing the payment of 5% on the proved artwork’s price increase or between 1% and 3% of the resale value if the previous purchase price is unknown.

Bill No 2370/19, which is currently being processed in the Brazilian House of Representatives, provides for changes in the Copyright Law. Concerning the percentage of the gain for the calculation of the resale right, the bill proposes that at least 3% of the net resale value of the artwork be allocated to the authors or their heirs. The bill is still subject to debate and review in Congress.

Civil Laws Regarding Succession

Transfer of ownership and author’s right

Regarding the ownership of artworks, those inherited through succession must be subject to a probate proceeding, whether judicial or extrajudicial, to enable the disposition of the artworks and payment of the inheritance transfer tax (Imposto de Transmissão Causa Mortis e Doação, ITCMD). The ITCMD is a State tax, with a limit set by the Federal Senate of up to 8% on the market value of the asset.

One of the challenges encountered by heirs is the significant fluctuation in the value of artworks between the time of their creation by the artist and the subsequent transfer to heirs. In such cases, an appraisal conducted by a recognised expert is mandatory.

The probate must also include the destination of the artist’s copyrights, which includes the resale rights and which is extremely important in cases where there is no consensus among heirs (usually family members) regarding the artist’s legacy.

Tax and estate planning for artists and art collections

Tax and estate planning for artists and art collections is unique and complex, since it involves a very subjective asset: artworks.

Ideally, issues such as cataloguing the artworks, deciding on the authorised service providers, the contract with the dealers, and deciding on the legal structure for the preservation of the artist’s legacy should be decided while the artist is still alive. However, many artists remain uncertain or wish to avoid these issues and take no action while they are alive.

Succession-planning instruments for artists and art collections are quite similar to those commonly used for the transfer of movable property. In some cases, the solution is simply the drafting of a will by the artist or the early donation of artworks and transfer of copyrights, made through a declaration, contract or deed of donation, and the payment of the ITCMD.

In more complex cases, the solution is the establishment of a company or non-profit entity to own the artworks and/or artist’s rights and manage the collection.

The Rouanet Law

Law 8.313/91, known as the Rouanet Law, establishes public policies to foster national culture. Its main objectives are the promotion, protection and valuation of all expressions of national culture. These projects encompass visual arts and cultural heritage, including museums, art collections, the preservation of historic buildings, and audio-visual productions.

However, museums and cultural institutions need to prove good governance as well as have fair contracts to attract companies that can allocate their incentive funds to their projects. The risks associated with non-compliance with projects and inadequate investment can also affect sponsors.

The National Programme for Cultural Support (PRONAC)

PRONAC, established under the Rouanet Law, is intended to foster the production, distribution and accessibility of cultural products, safeguard and preserve historical and artistic heritage, and promote the dissemination of Brazilian culture and regional diversity.

In order to regulate procedures related to the submission, receipt, selection, analysis, approval, monitoring, reporting and evaluation of projects and cultural actions under PRONAC, the Ministry of Culture enacted Normative Instruction No 23, dated 5 February 2025.

Tax incentives

The law provides tax incentives for individuals and companies investing in cultural projects approved under PRONAC. Individuals can deduct up to 6% of their payable income tax if invested in cultural activities, and legal entities that calculate their taxable income by means of a specific tax regime designated Lucro Real can deduct up to 4% of their payable income tax invested in cultural activities.

These incentives not only provide tax relief but also allow sponsors to promote their brand visibility through cultural events.