Secrecy surrounds BMW - Marx settlement. By Patrick Burnett

Gerhard Marx, the artist who reached an out-of-court settlement with BMW South Africa after he took the company to court over copyright infringement, has praised the support he recevied from the artistic community as “phenomenal”.

However, the details of the settlement have remained tightly under wraps according to the terms of the agreement, with both Marx and BMW South Africa refusing to comment. Marx was claiming R1,5-million in damages from BMW South Africa over the use of an illustration technique that he developed in a 2006 advertising campaign. The case was set down for court on October 9, but the out-of-court settlement was reached before the court date.

And even though the art world has interpreted the settlement as a victory for artists, BMW spokesperson Benedict Maaga said, contrary to reports that the company had apologised to the artist, no apology had been issued “as there was no need to do so”. He said the matter had been settled “amicably” on the basis that the settlement agreement and its terms were kept confidential.

“Without breaching the contents of the settlement which we need to abide by, it’s important to point out that we continue to be of the opinion that the advert did not infringe the artist’s copyright,” he
said.

Before the settlement and at the time of the auction in September, Marx looked set for a drawn out – and expensive – legal battle. The event to raise money for his legal fees was billed as the David
and Goliath auction and took place at The Bag Factory in Johannesburg. It raised R450,000 through the auction of donated works of art, some from the likes of William Kentridge.

Contacted by South African Art Times, Marx was clearly relieved the case was over, but unable to comment on the details of the agreement. “That was mindblowing,” he said about the auction held to raise funds
for his legal fees. “There was basically two weeks to do it in. It was phenomenal generosity on behalf of everyone.” He praised the David and Goliath auction for supporting him as an individual and the “unprecedented” support from his gallery, the Warren Siebrits Gallery.

“Without that kind of financial support you really don’t have a footing to stand on,” he said. He said the David and Goliath fund would form a base to support artists in other copyright infringement cases.

“I think for the artistic community, which is quite often seen as being individualistic, it was phenomenal to feel that kind of support.”

Speaking about the arts in general, he said he felt “strongly” that artists had a right to a private language, meaning that it became difficult when this was “suddenly thrown into the public sphere”.

The Bag Factory education officer Bronwyn Lace said there was a
“significant amount” that would remain in the David and Goliath fund for future situations involving copyright and for education programmes on copyright and plaguarism. “The most positive thing (to come out of the Marx case) has been the David and Goliath initiative and also that this (copyright
infringement) is a serious issue in the art world and needs to be raised.”

She said when copyright infringement took place artists and galleries often did not follow up because they knew they would be unable to compete with the legal fees that came with taking large companies to court. However, the damage done to artists could be extensive if the replicated work was of a poor quality as it gave the impression that the artist did not produce quality work.

Lace said the out-of-court settlement was a warning to corporates that if they were interested in using artistic work in an advertisement then it would be better for them to engage with the individual artist.