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Musicians are not required to be registered with the Ordem dos Músicos
The Virtual Plenary of the Federal Supreme Court reaffirmed jurisprudence in the sense that the activity of musician is an artistic manifestation protected by the guarantee of freedom of expression, and, therefore, the requirement of registration in the Brazilian Musicians Association (OMB) is incompatible with the Federal Constitution ), as well as annuity payment, for the exercise of the profession. The decision was taken in the records of Extraordinary Appeal (RE) 795467, reported by Minister Teori Zavascki, which had recognized general repercussion.
The RE was filed against the decision of the Federal Regional Court of the 3rd Region (TRF-3) which, on appeal by the OMB in a writ of mandamus filed by two singers, deemed the imposition of the registration valid. For the TRF-3, Law 3857/1960, which regulated the profession of musician and created the OMB, was approved by the Federal Constitution of 1988, and freedom of expression concerns only the content of the activities, not removing the legal requirements for the exercise of certain professions. “Professional musicians are those inserted in the labor market, realizing income due to their artistic expression, for their survival and that of their families, music is not simply a leisure activity”, stated the TRF.
In the extraordinary appeal, the artists pointed out an offense to article 5, items IX and XIII, of the Constitution, in the sense that the normative and supervisory function exercised by the OMB on popular musicians is incompatible with the Federal Constitution. They stated that the career of popular musician cannot be limited, as popular music is an artistic expression constitutionally guaranteed, regardless of prior censorship or license, and that Law 3857/1960 was not accepted by the Constitution. They also maintained that there is no public interest to justify any policing of their activities, as there is no potential to harm third parties.
In his statement, Minister Teori cited the summary of the decision in RE 414426, reported by Minister Ellen Gracie (retired), in which it is stated that not all trades or professions can be subject to compliance with legal conditions for their exercise. "The rule is freedom," said the minister at that trial. “The activity of a musician does not need control. It is also an artistic expression protected by the guarantee of freedom of expression”. Minister Teori pointed out that this same orientation has already been adopted by the two STF Panels and, therefore, the TRF-3 decision would not comply with the Supreme Court's understanding.
The rapporteur's statement for the recognition of the general repercussion of the matter was followed, unanimously, in a deliberation in the Virtual Plenary. On the merits, he reaffirmed the ruling Court's jurisprudence on the matter and provided the RE to grant the writ of mandamus, in which case minister Marco Aurélio won.
Pursuant to Article 323-A of the Internal Regulations of the STF, judgment on the merits of issues with general repercussions, in cases of reaffirmation of the Court's dominant jurisprudence, can also be carried out electronically.
STF reaffirms that registration with the Ordem dos Músicos is not mandatory. STF. Available at:< http://www.stf.jus.br/portal/cms/verNoticiaDetalhe.asp?idConteudo=269293 >. Accessed on: 28 now 2015.