Taking Creative License

An advert showing the outline of a woman seated, her shape rendered using cut-up maps, has landed a Johannesburg advertising agency in hot water. Kim Gurney discusses the wider implications of the Gerhard Marx case

The recent attempt by artist Gerhard Marx to secure his creative copyright against perceived infringement by commercial third parties has galvanized the art community in support. But beyond the merits of this particular case, the fracas has fired a shot over the bow for creatives to brush up on their legal rights in an era of increasing crossovers between the commercial and art world. It has also posed the tricky but deep-seated question: Where, in this postmodern age of pastiche, does intellectual borrowing end and theft begin?

Marx alleges that advertising agency Ireland-Davenport and BMW South Africa plagiarised and infringed upon his creative and intellectual domain. His complaint followed the appearance countrywide of a newspaper advertisement for the new BMW Z4. It comprised cut-up maps that formed the outline of a woman’s body from combining chunks of spliced highway.

The Warren Siebrits Modern and Contemporary Gallery, which represents Marx, instigated in March legal action against both companies. It said in a statement: “Not only is the advertisement a direct rip-off of Marx’s signature style but the advert is also composed using reconstituted map fragments which is the cornerstone of Marx’s expression.”

Siebrits himself is confident the battle is worth fighting and has received numerous statements of support. He says Marx had a November exhibition at the gallery and the accompanying catalogue explained the thinking behind his ideas. Siebrits said the issue came down to ethics and intent: “This is about people who get paid for creative thinking taking an idea lock, stock and barrel. We are challenging the notion of whether there is anything wrong with this and also what the implications are for Gerhard.”

Marx has meanwhile been stymied in his creative output. The perceived jump from the fine art to the commercial world of advertising can be risky for an artist with a reputation not yet well established, said Siebrits. “As an artist, it’s your sole form of livelihood. The ad agency hijacked his expression, which is very personalised. He really can’t continue working in this way because the whole language is now tainted. It’s been taken from a secular private expression to [being used to] sell cars … The advertising agency gets a large commission [from the client, BMW] — they are in creative work for a living but so brazenly feel they can happily borrow ideas and conceptual orientation and palm it off as their own.”

Other artists have rallied around in support. Paul Edmunds, writing in the March issue of online journal ArtThrob, commented: “In one fell swoop, the manufacturer of some of the world’s most expensive gas guzzlers dumbs down the carefully wrought, finely aimed probings of a young artist for the design-as-lifestyle generation.”

A commenter going by ‘joe’ on Nathaniel Stern’s well-known blog called advertising agencies “creative leaches with a cut-and-paste mentality”. He added: “I feel what should come out of this is a discussion as to why South Africa loses its young creative talent to the advertising industry and what measures can be taken to attract young people into the art community”. Another contributor to an online bizcom chatgroup asked: “What is the difference between stealing someone’s art and stealing a BMW?”

Sue Ferguson, managing director of Ireland-Davenport, said in response to the allegations the agency’s integrity was “100% intact”. Its lawyers have responded and the agency prefers not to comment further. “It’s never been something we were prepared to debate in the press,” she added.

But Chris Moerdyk, a corporate marketing analyst who was formerly head of strategic planning and public affairs at BMW SA, said copycat advertising was rarely consciously done. There would occasionally be an administrative misunderstanding between parties but he said conceptual work was rarely knowingly plagiarised.

“I’m pretty clear that very, very few advertising industry creatives consciously copy an advert or idea, particularly in the same country,” said Moerdyk. “Advertising people wouldn’t be doing their jobs if they didn’t look at ads around the world … It’s almost impossible to come up with an absolutely original idea. I honestly don’t believe creative people in ad agencies consciously copy an idea because it’s just not something that happens — 99 per cent [of copies] are fluke or accident. And you’ve got to be really stupid if you swipe the intellectual property of someone you know is going to see the work.”

Moerdyk regularly conducts independent marketing audits for companies on the service they receive from advertising agencies. Besides differences over production costs, he claimed to never have come across an agency that had tried to pull the wool over the client’s eyes. “There is a constant stream of information and it is very difficult in terms of human nature to separate one’s independent creative thought from the stuff coming in. Equally, it doesn’t make marketing sense to copy an ad [for instance] that’s already been run.”

So does Marx have a case? Dr Owen Dean, a specialist in copyright law, writes in the Handbook of South African Copyright Law (Juta, 1987) that it is often difficult to decide whether the idea or its expression has been copied. “Due attention must be given to whether the similarity between two items is attributable to common ideas or concepts embodied in them or to similarity of material expression of ideas.”

Steve Ferguson, an intellectual property lawyer at Cape Town firm nicciferguson.inc, said an idea that remained in your head cannot be protected, but as soon as it was reduced to a tangible medium, and the remaining requirements for copyright protection in terms of the Copyright Act were met, it might qualify.

The Marx affair is set against a backdrop of increasing cross-pollination between business and the visual arts, albeit of a more explicit and collaborative kind. Artists are increasingly engaging with corporations who want to reach consumers in new ways. Recent examples include Appletiser, LG air conditioners, Woolworths and various hotels like the Legacy Group.

According to Business & Arts South Africa (BASA), these new corporate players are helping to boost the art industry. Nicola Danby, the CEO of BASA, said this crossover was a positive development for artists — with the caveat that an acceptable agreement between the two was reached. She said: “It can be a good thing but the key is the artist needs to understand what he or she is prepared to do or not do, and business must acknowledge their copyright and respect it.”

Danby pointed out that artists could benefit more than just financially when these linkages were used for marketing purposes because the company would then also publicise an event. “To that extent, it is an effective platform to showcase an artist’s work potentially out of the gallery ambit and into public space.”

Artist Ralph Borland has reservations about what he perceives as an encroaching commercial influence on the visual arts and culture in general. He is not against artists entering into agreements with commercial enterprises per se but feels strongly about protecting the intellectual property of artists from unauthorised appropriation into the commercial sphere.

“The problem is with the perceived status of the artist and artworks,” he explained. “The advertising industry feels they can just pick from [the art world]. The attitude seems to be that you should be grateful.”

Borland thinks this can also have a corrupting influence on artists who consequently feel less inclined to produce more controversial work. “Art is a social irritant, it can be provocative. And this social function is a valuable role … If there is an ideological or commercial restriction, it is not a healthy culture,” he added.

Borland has had his own brush with intellectual property issues. He last year created a public sculpture at Cape Town’s foreshore, which has already featured in one television advertisement. He said motive and context were important considerations.”As a public artwork, I did not want it to enter the commercial world because it diminishes its public ownership,” he said. “It’s a public space and I wanted to hold onto that integrity … Producers [in the commercial filming industry] are under the misapprehension they can use public artwork as more than background.”

Copyright is an increasingly complex and technical area, made more so by new technology like the internet. According to Ferguson at nicciferguson.inc, reproduction is now far easier while anonymity and borderlessness makes tracking down culprits more difficult. At the same time, creatives often work in a freelance or collaborative capacity, which makes attributing authorship more complicated. It is usually vested in the creator of artistic works but this situation changes under conditions of employment or commission and joint authorship is also possible in cases of true collaboration, he said.

Ferguson said artists whose copyright was infringed should write a “cease and desist” letter to give the infringer a period of time to stop. If there was no favourable response, they could apply for an interdict against the infringer and/or claim financial compensation in the form of damages. But Ferguson conceded litigation was expensive and not always affordable or viable for creatives. “For that reason alone, a lot of these cases don’t reach the courtroom.”

What is copyright?

Copyright, patents, trademarks and designs are all forms of intellectual property. Copyright protection grants the creators certain legal rights over their works, both economic and moral. The former allows authors to profit from their own work while the latter allows protection of the integrity of what they have created, according to the Dramatic, Artistic and Literary Rights Organisation (DALRO). A work has to be original and must exist in material form to qualify. Copyright does not have to be registered — it comes into effect automatically when an idea gets material form. A licence from the author to reproduce, publish, perform, transmit or adapt any work is then required.

South African Copyright: What does the law say?Copyright law is territorial so it differs from country to country, though signatories to the Berne Convention (South Africa is one) comply with the same basic principles. Local law is determined by the Copyright Act of 1978 and its subsequent updates to comply with international law (Trade Related Aspects of Intellectual Property Rights). Other relevant legislation includes the Bill of Rights (for access to information) and The Promotion of Access to Information Act (2000). Copyright is protected for a window of 50 years after the death of the author, after which it falls into the public domain.

What is the difference between copyright infringement, plagiarism and moral rights?The author of a work has the right to claim authorship and object to any distortion, mutilation or other modification where such action is or would be prejudicial to his or her honour or integrity, according to the Publishers’ Association (PASA). The association says this means the author has the right to be identified as such (right of paternity) and the right to object to any adaptation of the work that would reflect badly on him/her (the right of integrity). Plagiarism is when someone passes off another person’s work as their own. Copyright infringement is when a work is reproduced, published, performed in public, broadcast, transmitted in a diffusion service or adapted without permission. Some exceptions apply, most notably the “fair dealing” clause. This essentially allows users to copy for their own study, research or private use, as much of a work as necessary to meet their “reasonable needs” without seeking permission or paying compensation.Useful resources: DALRO: www.dalro.co.zaPASA: http://publishsa.co.za/copyright.htmCreative Commons: http://za.creativecommons.org/