The use of tax incentive mechanisms in order to guarantee and encourage cultural freedom of expression has become challenging in Brazil’s cultural sector. Recently, there have been many cases where artistic expression has suffered limitations at the hands of market and social pressure.
By Fábio de Sá Cesnik and Inês Virgínia Prado Soares INSIGHT
Recently in New York, Bank of America and Delta withdrew their financial support for the play “Julius Caesar” (directed by Oskar Eustis – Public Theatre’s Artistic Director), where Caesar had a strong resemblance to Donald Trump and Calpurnia spoke with a Slavic accent, much like Melania’s. Shakespeare’s play, written in 1599, depicts a ruler seeking absolute power, who at the end is stabbed to death by minorities and women. The controversy started when Donald Trump Junior criticized the similarity on his Twitter account. As a result, the sponsors interpreted the play as an incitement of violence and declared that the New York Public Theatre’s production crossed the line of good taste.
The US has strong institutions and is known worldwide as a symbol of free speech, where companies and people are able to openly express their thoughts without restriction. The sponsors’ financial withdrawal, after the mentioned tweet, is a clear example of how important funding is for performances, and demonstrates the possibility companies have to either enable or prevent creative content from being produced, for any reason, including the apparent message being disseminated by the content.
In fact, such sponsorship mechanisms force brands to be more careful. In the case of the Public Theatre, it is unknown whether the sponsors would have had more losses if they hadn’t withdrawn their support. However, it is unquestionable that the decision caused great antipathy within public opinion, since some people understood it as an act of intolerant behaviour towards the diversity of thought and cultural perspective, while others saw it as an overt form of censorship.
In Brazil, private sponsorship faces the same worries. Companies can take advantage of tax incentive mechanisms that allow them to execute their marketing strategies along with cultural activities (chosen by each company) while carrying a lower tax burden. The government also funds cultural activities directly using public resources. This direct funding is meant to assure the production of artistic works that may not be attractive to the private sector. On the other hand, the private sector, throughout tax incentive mechanisms, could embrace projects with higher market visibility.
Both mechanisms – tax incentives and direct funding – were legally structured to protect, promote and stimulate free thought. Therefore, behaviours that undermine freedom of expression are prohibited by Brazilian statutes.
Brazilian federal statute n° 8.313/91 (Lei Rouanet) provides for tax incentive for culture. Its Sec. 39 establishes as a felony any political discrimination that infringes on the freedom of speech for intellectual and artistic activities, carried out through government programme resources. The Brazilian funding options benefiting the audiovisual sector follow the same path.
The shutdown of “Queermuseu”
The struggle between art and corporate sponsorship was most recently evident in the city of Porto Alegre, where art exhibition “Queermuseu: Cartografias da Diferença na arte Brasileira” (Queermuseu: Cartographies of Difference in Brazilian Art), which focused on sexual diversity, was shut down a month earlier than scheduled by its sponsor the Santander group – a financial corporation with over 38.8 million clients and the third largest private bank in the Brazilian Bank System.
The exhibition was on display at Santander Cultural, an important cultural centre in Porto Alegre that has been open to the public since 2001 and has hosted over five million visitors.
Some conservative groups, led by Free Brazil (MBL), a political movement of young conservatives and religious groups, criticized the exhibition, alleging the artworks featured paedophilia and violated religious and moral values. At the end of the exhibition, Santander group apologised for any possible offence generated by the exhibition and stated they would return the total amount they invested using tax incentives (approx. 800 million Reals or 250 million Euros) to the Brazilian Federal Treasury.
In order to harm Santander, the conservative protesters stated that Santander’s clients should terminate their relations with the bank. On social media, a fake news story was shared over 100,000 times that reported the bank had lost 20,000 clients in two days due to the exhibition. The bank denied the story and what really happened was that the Santander Cultural site on Facebook received 20,000 bad reviews. Additionally, according to a report published by the Brazilian Central Bank in October 2017, the bank’s clients actually increased over the last three months.
The Federal Public Prosecutors Office (Ministério Público Federal or MPF) in Porto Alegre sent a recommendation to Santander with the intention that the exhibit would be reopened for another month, and requested that the bank produce or sponsor a new exhibition about the same subject, in order to compensate the public for the time the exhibition was closed.
Santander chose not to comply with the recommendation and it is still unknown whether this will become a matter for the court; the MPF could file a public civil action claiming compensation for damages caused by Santander. Such law suits usually take years to be concluded; however, if MPF’s case is upheld, Brazilian law allows the judge to determine collective moral and patrimonial damages, and could include a judgment that would have Santander promote new exhibitions focused on LGBT themes.
This Santander exhibition started a domino effect in which the public began to criticise other art exhibitions and plays, with private citizens, organised political groups and the judiciary acting as censors, prohibiting presentations and shutting down exhibits; all somewhat very odd for the Brazilian context after the 1988 Federal Constitution established the federal government and a consolidated democracy.
Censorship is also coming from governing authorities, such as from Rio de Janeiro Mayor Marcelo Crivela, who is also an evangelical and licensed bishop of The Universal Church of the Kingdom of God. The mayor also banned the “Queermuseu” exhibition in the Museu de Arte do Rio (MAR), explaining that “the population of Rio de Janeiro is not interested in art works that promote paedophilia and zoophilia” (Folha de São Paulo, 3 October 2017).
MAR is a public museum; therefore, it should stimulate cultural diversity and access to culture, even in situations that are not attractive for the market. Nevertheless, the mayor’s opinion prevailed and MAR responded to Crivela’s ban in a 4 October 2017 statement:
As an entity of the public administration, the Museum will comply with the command given by City Hall and will not put on the exhibition ‘Queermuseu: Cartografias da Diferença na arte Brasileira’. However, MAR believes that museums are fundamental to diversity. They help us to get in touch with different ideas and understand other points of view. In them, the present happens and the future is built. The plurality, amplitude and continuity of the debates of the present are the guarantee of the future of a democratic society. (…) The discussions proposed by art should not be interrupted. Silencing uncomfortable discussions is to avoid facing conflicts that emerge from society. Therefore, not putting on ‘Queermuseu’ will not prevent the debate from occurring; which was fundamentally the intention of MAR with this exhibition.
Offending the Christian faith
A few days after the shutdown of the Santander exhibition, a judge forbid the presentation of play “The Gospel According to Jesus, the Queen of Heaven”, written by Scottish playwright Jo Cliford and directed by Natália Malo, featuring Jesus played as a transgender woman. The play, which was scheduled to be performed at Sesc Jundiaí (SP) to an audience of people aged 18 and older, had been performed since 2016 and was even part of the International Festival of Theatre. Jundiaí is a medium-sized town in the state of São Paulo.
The judge said the play was offensive to the dignity of the Christian faith. The case drew attention because of the judge’s decision that it violated freedom of artistic expression. Sesc, as a private entity, appealed the decision and continued presenting the play in other cities. When the play reached Porto Alegre, it suffered another judicial claim to ban the performance, but the judge of Porto Alegre denied the request saying that a ban violated freedom of speech.
The play suffered the same circumstances in the city of Belo Horizonte where an attempt to ban the play took place, but the federal judge decided in favour of freedom of speech. Two days before the play’s premiere in Belo Horizonte, the Tribunal de Justiça de São Paulo (Superior State Court) reversed the previous ban from the Jundiaí judge.
Controversy at the Museum of Modern Arts
Another controversy happened in September at the Museum of Modern Arts (MAM) in São Paulo where a video of artist and choreographer Wagner Schwartz, who was filmed naked during the performance “La Bête”, went viral. At one point, a five-year-old girl is seen touching the artist’s foot while her mother was observing. Since then, the museum, choreographer and mother have been accused of paedophilia on social media.
A study, conducted by SOCIALQI and main newspaper Folha de São Paulo, showed that the majority (62%) of the accusers were men, aged 35-44, married, with college degrees and from middle-class families. Among them, 40% were evangelical, 82% were considered to be right-wing and 60% were from São Paulo.
A conservative group also organized a protest in front of the museum, which turned violent when some protesters punched museum employees, and museum curator Luiz Camilo Osório began receiving threats. Instead of advocating for freedom of speech, the Public Prosecutors Office in São Paulo (MP-SP) is investigating MAM over possible damage the performance could have caused the child.
In October 2017, Sao Paulo Museum of Art (MASP), one of the most important museums in Latin America, launched an exhibition named “Sexuality Histories”, which was restricted to people under 18 years of age, even if they had their parent’s authorization.
Since its foundation 70 years ago, this was the first time MASP prohibited young audiences to attend an exhibition. Due to this, some people have criticised MASP for practicing a kind of “self-censorship”. The museum, however, has stated that some pieces of art have strong violent and sexual elements that could be inappropriate for children.
A couple of days after MASP launched its exhibition, another related case occurred. The Federal Public Prosecutors Office in Minas Gerais (MPF) sent a note to the National Secretary of Justice (Federal Government division) recommending it to create rules that would define the minimum age for all exhibitions or live concerts in the country. Since the government usually accepts MPF recommendations, Brazilian people must be aware to not agree to any kind of self-censorship or limitations on freedom of speech.
MASP, MAM, Santander and Sesc are private entities. Their activities are financed by public resources from Lei Rouanet.
Brazil’s film industry regulatory agency (Ancine) approved a project involving the story of a thief whose target was rare books from libraries. He was convicted a couple of times and was prosecuted on several other occasions. The production of this audio-visual work received 600,000 Reals (approx. 157,000 Euros) to shoot it. As the amount of the funding of this film became public, the biggest theft of rare books in Brazil was taking place in the Federal University of Rio de Janeiro (2016). The documentary “Letters to a Book Thief” was directed by Caio Cavechini and Carlos Juliano Barros and premiered in 2017.
The funding of the film with public resources caused outrage and protests. The leading figures of these protests (as well as their goals), however, were way different from the ones in the Santander/Queermuseu episode. The reason people criticised the financing of the movie was to avoid glamourizing a book thief in order to protect culture. The objectors argued that no agency should finance a work that worships the history of a book thief. They claimed that the government should use the money to replace the stolen rare books for the libraries instead, and to invest in security and better structure for the libraries.
In a scenario of scarce resources, the idea that the government chose to benefit the book thief rather than the libraries arose. In contrast, the freedom to create and the diversity of ideas are essential to any democratic regime, and constitute the heart of our cultural rights. Our participation in the cultural life of our community becomes richer when content from different points of view are available. Despite whatever the controversy of a movie about a book thief may be, drawing attention to the need for higher security standards for national collections is of great value. At the same time, it is totally unacceptable that any intellectual, national property be stolen, as in this case, since the thief was well aware of the value of the books.
The American and Brazilian examples brought out above indicate a great challenge to the cultural sector: the use of tax incentive mechanisms in order to guarantee and encourage cultural freedom of expression. Sponsorship is, indeed, essential to the funding of cultural activities, and companies should be able to select projects that they want get involved with. However, there is no room at all in the process for any kind of creative censorship. The disapproval of certain artistic works or even censorship should only be performed by the public itself.
Fábio de Sá Cesnik is an attorney and partner of Cesnik, Quintino e Salinas Advogados; author of the book “Guia de Incentivo à Cultura”; president of the Committee of de Media and Entertainment of the Institute of Lawyers from São Paulo; and Vice chairman of the Committee of Media and Entertainment of Brazil California Chamber of Commerce.
Inês Virgínia Prado Soares is a Federal Public Prosecutor (MPF); holds Doctorate and Master’s degrees from PUC-SP; and is the author of the books “Direito ao(do) Patrimônio Cultural Brasileiro” (2009) and “Crimes conbtraos Bens Culturais” (2017).
This article is part of a Freemuse INSIGHT series edited by Marie Korpe. It was published in November 2017. The views and opinions presented in the article are those of the author(s) and do not necessarily reflect those of Freemuse.