The Andean Tribunal of Justice, through prejudicial rulling 135-IP-2020, has established a determinant factor to differentiate between the public communication of a pictorial work in an audiovisual work and its incidental use. This distinction is based on the criterion of purpose, which analyzes whether the work is used to set a scene or if it has an impact on the narrative thread of the story.
An illustrative example of this is an interview conducted with a famous personality in their home. In this situation, it is natural for decorative elements such as paintings, plants, and lamps to appear in the scene. If these elements only serve to set the environment of the home, then they are considered an incidental use of the works.
Conversely, if during the scene the character showcases their collection of works or recounts how they obtained them, the works become relevant to the narrative, and the viewer becomes aware of them, thus constituting their use in public communication.
This decision provides legal certainty to the audiovisual industry in copyright infringement disputes in Colombia and the Andean Community. Additionally, it offers relevant legal criteria to clearance services to mitigate the risk of potential controversies.
