DEAR ARTIST, WHAT LEGACY WILL YOU LEAVE BEHIND?

“A legend is an old man with a cane known for what he used to do. I’m still doing it.”

~Miles Davis

mona lisa

Ever wondered how many versions, copies and parodies of the Mona Lisa there are? I have!

This painting done over 500 years ago has been described (by Wikipedia) as: “the best known, the most visited, the most written about, the most sung about, the most parodied work of art in the world’. It is now estimated at a whopping US$ 782 million! Now I’m sure man Da Vinci put in loads of time and work capturing this beautiful damsel’s features in paint form (guy started it in 1503 and finished it in 1506, but the perfectionist in him had him still adding finishing touches as late as 1517), but whoosh.

Pause for a moment and think about those zeros with me. 782,000,000 million dollars.

Translate that figure into our ever humbling Kenyan currency and you could easily rent Kenya (and its people) for a year, even hop on a Rick Ross track and have one of those machines that blow money in the air in tow, instant fame, all problems solved. Call me a fairy.

We are talking about a painting so valuable that when it was stolen in 1911, Picasso was implicated as a suspected thief. THE Pablo Picasso.

Fun fact: It was actually stolen by an Italian guy. That convo went a little like this:

Mr. Italian thief to the French Government: “Fee-fi-fo-fum!!! This painting should be  on display in an Italian museum, not here! ……..So I took it.”

Italian Government: “YES BROTHER! YOU ARE A PATRIOT! Okay maybe give it back to the French cause…you know…stealing is sorta illegal, BUT YOU ARE THE MAN!”

 yo-bro-you-da-man

 

French Government: Give it…

I’ll tell you how we got here.

Last week, I had a real interesting chat with a good friend; Emmaus Kimani. Emmaus is many things, many! But I call him an art broker (he cleans it up and calls himself a private seller) because he trades in art. Pretty cool I think because he is basically a walking, talking, breathing exhibition space.

So he tells me about a certain artist uncomfortable with selling her work herself because of a certain experience she had. I’d narrate it to you but I’d rather put us all in her shoes for it to hit closer home.

         Say you are an artist. You’ve been doing this professionally for a while so you have   an art studio at an art space, one of the many we have around. I am Le friend and because I like your art, I often visit your studio. Now I trot in one day and see a fiiiiine piece on display. You did it. Took you about 5-6 months to finish it.

         I want IT!

                  Me:      “Yoh, I need this piece. How much are you selling it for?”

                 You:     Kshs. X amount.”

                   Me:      *eyes momentarily pop* “Eeeh, Bei ya jioni? Okay look, I reaaallly like this piece and since you know, we friends and everything, si you give it to me for Kshs Half of X.

                  You:     *shrugs*…

                  You don’t want to be that friend so you say ‘Okay’

A year later…

You are going about your day. You decide to visit Art Space ‘Y’ for whatever reason. And there on their wall is your piece. You move closer to see the price tag and do a double take. Your piece is now being sold for Kshs Quadruple X amount.

You run to the inquiry desk to find out who brought it here. They say your ‘friend’ did. But according to them, your ‘friend’ said they got it from God knows where.

Feel played yet?

Here is your hard work, being sold for some crazy value, and nobody knows it’s yours. Your creativity, your effort, all gone to sh*t. Besides, how will you prove you made it, let alone owned it first? But shouldn’t this Art Space ‘Y’ know better than to take works without actually requiring Certificates of Authenticity?

We have now arrived at the subject of this post: Certificates of Authenticity (COA) and your moral rights as the artist.

Kenya’s Copy right laws recognize COAs as an authentication device. These COAs act as titles of ownership of creators and subsequent owners of the work. They are positively essential for anybody engaging or participating in art business. Whether you are buying a work, selling it, facilitating its sale, or making it; these drafts of paper will tell you/show:

  1. Who made the work.
  2. What media was used to create the work.
  3. What its original price was and subsequent sale prices thereafter.
  4. All owners who have at one time or another owned the work before they resold it.

Here’s why COAs are important;

For You the Artist

Not only does this COA protect your copyright, but it also ensures your moral rights over the work. Copyright protects your proprietary ownership of the work. No person will be allowed to use/sell your work as theirs UNLESS you EXPRESSELY and EXCLUSIVELY divest this interest to them; could be for money or whatever consideration you both determine as sufficient.

Moreover, your moral rights will protect the personal relationship between you and your work even when you no longer own the work, or the copyright in the work.

Moral rights basically concern the creator’s right to be properly attributed or credited, and the protection of their work from derogatory treatment. They are independent of the economic rights of the creator and are more about recognition. As the holder of this moral right you have the exclusive right to:

  1. Claim ownership; and
  2. Object to its distortion, mutilation or modification.

They preserve your honour, and your reputation whilst compelling you to make original works.

For you the Buyer

People buy art for different reasons. If you buy a piece, wouldn’t it be reassuring to know that it’s an original piece before you purchase it? That it isn’t stolen? That you as a bona fide purchaser are getting good title and thus can’t be sued in a court of law for all kinds of infringement, let alone acquire criminal charges?

Then there are the art collectors.

Art collectors are persons who collect art. These individuals go around identifying and buying art from various renowned or potentially renowned artists and either keep these pieces as part of their estate, or sell them much later when the value of the piece has significantly increased. Some even buy them from owners who bought the piece ages ago whilst others choose to avail them for sale at Art auctions. (Check out this year’s Art Auction held at Circle Art Gallery Kenya here http://www.circleartagency.com/auctions/ )

This year alone I’ve met 3 Kenyan art collectors. These guys will buy any work you have if it’s by an artist that they like. I mean ANY. Even if you triple its original price! Interesting fact: one of our very own Vice-Presidents; John Murumbi, was an avid art collector. His collection has been described as ‘Africa’s best known collection of priceless heritage and artefacts’.

If you wish to read more on COAs, take a look at http://www.artbusiness.com/certaut.html

If you wish to get a view of how COAs look like, or require one for your personal use, you can find free templates here http://www.artpromotivate.com/2013/07/certificate-of-authentication.html.

If you would like a custom made one by me (at a fee), email me at immaculatejuma16@gmail.com

(Provisions cited are S. 2 and S. 33, S.36 of the Copy Right Act).

Have a devasatingly lovely week!

Yours, Que.

 

CREATIVE SABOTAGE: THE ‘STARVING ARTIST’ AND WHY HE STARVES.

starving artist.jpg

“The social pact, far from destroying natural equality, substitutes, on the contrary, a moral and lawful equality for whatever physical inequality that nature may have imposed on mankind; so that however unequal in strength and intelligence, men become equal by covenant and by right.”
Jean-Jacques Rousseau

Perhaps to elaborate further, the ‘Social contract’ talked of by man Rousseau up here, which is a tenet of most if not all civilizations, dictates one main virtue; respect for that which is owned by another regardless of physical or intellectual differences. Why? Because no man is born so superior to another to warrant the denial of another’s right to own property on the mere pretext of ‘weakness’ or ‘inferiority’

Fast forward this history lesson to present day everyday life.

This very life that is characterized by dozens upon thousands of deals being closed daily; from your refusal to board that grossly over-priced matatu and instead choosing ‘ile imebeba bedbugs’ (Route 11, you know what I’m talking about), to the bargain you strike with the mama mboga on your way home. From board rooms to classrooms to supermarkets, your freedom to contract is just that, a freedom! And by contract here I mean it in the most simplest of ways i.e. you offer me a good or service, I either accept it or reject it. If I accept it, I’d have to give you/pay you in exchange for the good or service forming this contract. The acceptance of this offer and my payment in return would then imply both our willingness to be bound by this deal. Contract 101. Which brings me to the point of this article…(story time!)

It’s a Tuesday night, I’m doing the usual awkward nothingness that every ‘9 to 5-er’ does after getting home from work. It’s a choice between making my dinner, popping in an episode of House of Cards, starting that work-out I’ve been meaning to start (for 4 years now) or staring at my ceiling. Just then, my phone lights up. It’s Artist X calling.

X is a good friend, so naturally, I’m happy to receive this call. This however isn’t a courtesy call, this is business.

X says he has been approached by Ms. J to participate in an Ad campaign for Company Y. Just between you and me, Company Y is a pretty big deal! So of course I’m here gushing over this deal. But he goes on to say he isn’t quite sure about these people, and me being madam okil, he asks me to take a look at this contract and engage Ms. J.  Note, Ms. J wants him to sign this contract immijetri (immediately) because this work is ‘urgent’! (Here is where I mention that I also manage Artist X).

He sends me Ms.J’s digits and the conversation ends.

Next day…

Ms. J calls.

“Hello? Are you Q? I was given your number by Artist X. He says I talk to you about a contract I proposed to him yesterday.”

“Yes, this is she. Tell me more about this contract.”

“Well, first I am acting as an agent. I’m not from Company Y, but I’m supposed to get/contract an Artist for an Ad campaign that Company Y want to do. So from the money paid to Artist X by Company Y, I will take 20% as my agent’s fees. We’ll ask him to model for this campaign as well as have him create work for it. It’ll run for a period of 2 years”

“Brilliant! It sounds like good fun! Please send me the contract first though to enable my client and I engage from a more informed position.”

“Fine. But he needs to sign it today; the work needs to begin today.” RED FLAG NO.1

I am basically given less than an hour to review this contract. It is 2 pages so I oblige…under protest.

Now the contract sent my way has got to be one of the most absurd pieces of paper masquerading as a Contract that I have ever had the displeasure of encountering. Please, share in my shock won’t you? The agent (s) terms were in summary:

  1. Exclusive assignment of his Copyright to THE AGENT, not Company X. They would have the freedom to do whatever they pleased with his images and work on all kinds of broadcast media… RED FLAG 2,3,4,…100!
  2. For 2 years or more.
  3. Non-participation of Artist X in any campaigns by Company Y’s competitors, for 2 years!
  4. Indemnity clauses mischievously crafted to indemnify the agents from any legal (or otherwise) action that may be instituted against them in respect of the contract.

I shan’t quote the figure of the contract, but it was less than Kshs 200,000/-. Now I know that seems like a lot of money, until you view this money against the intensity of the campaign and the creation and viewership your work and you as a model, will be subjected to, working with a time line of 2 whole years. We are talking TV Commercials, Billboards, Internet publications, perhaps even forums to speak as a sort of brand ambassador, for two years! These are the problems with this Contract;

  1. First, being forced into hurriedly signing a contract on the allegations of urgency is wrong. It may not be so grave as to call it ‘undue influence’, however, for one to be said to have entered into a contractual relationship, they must at the very least have been given the chance to FULLY appreciate the terms of the contract. It would be absolutely impracticable to sign a contract for an amount of money to offer a service you aren’t sure about! That could very easily be grounds for rescission of this contract on grounds of misrepresentation. What if you were given an entire building to paint? Would a figure less than 200k be enough?
  2. If at all one is required to produce work and to model on ads, then the two are distinct services and should be charged separately i.e. costs to produce the actual work and costs to participate as a model for the campaign. Your time resources as an Artist go into both these ventures, and factually, in any business, time is money.

My two cents? The pay should equate the amount of your work put in and time spent. A blanket figure is Shark’s strategy.

  1. My biggest contention: exclusive assignment of his Copyright to the Agency. I am open to correction on this but my knowledge of ad agencies is this: Ad agencies outsource talent structured to cater to better market their clients’ wares/services. They act as a middleman and may have any number of clients at any given time. A lacuna such as this would basically allow these same agents to not only use the Artist for Company Y, but would entitle them to ‘sell’ his brand to any other willing buyer. These could be international brands for all we know, high paying corporates!

Imagine this. You are seated at home. It is 2019. You are watching cable TV, say an international channel. An Ad pops up, and smack dab in the middle of this ad, is you! Smiling and talking about your art or anything else really. This is cable TV, so this AD has run in more countries than you can count. But you have enjoyed 0% of the proceeds of your face being used in this Campaign. Sound fair?

Needless to say I strongly advised Artist X against signing the contract unless a few deletions and a lot more additions were made. If it were my way, I would have drafted an entirely new contract.

Once Ms. J heard what I had to say on her contract, I was left on blue ticks.

So to the Artist reading this I say this:

  1. Know and understand your value. There may not be a standard remuneration scheme for creative services, but if you are in the business of making art, I’m sure by now you have crafted a way of charging your clients. If you haven’t, please, do it fast. Consult if you must, widely.
  2. It is completely alright to say no to any deal you feel is not in your best interests. You never signed up to save the world.
  3. Understand that your art is not just a talent or a skill, it is your business. Your very own company. Run it like one. Invest in yourself. Invest in every professional you may need to see you succeed. I’m talking accountants, lawyers, the City Council, any one! Get legal counsel especially where you are approached by clients asking you to sign documents. Binding yourself to an unfavourable contract may prove way more costly than paying that lawyer to peruse that contract, I assure you.
  4. Be professional in the manner in which you carry on your transactions. Write things down, have a notebook, have a business card, an invoice system, receipt books, a standard contract even. Remember, clients are impressionable, and your engagement will be heavily influenced by how you relate with them. Clients want you to instil in them a sense of trust. It’s the little things.

To the Corporate outsourcing creative services I say this:

  1. Vet the ad agencies you entrust to outsource talent for you. Ensure that you are privy to the terms which they intend to approach the talent with. You have goodwill riding on your name at the end of the day. I interact frequently with creative’s and I assure you, they talk amongst themselves. Unpopular brands, brands that flaunt oppressive contracts are often turned away by the mere mention of their name.
  2. Ensure you observe best practices; make your contracts fair so as to attract lasting partnerships with these creative’s. I often hear corporates, both private and public, lament that ‘they don’t understand artists’, as if artists were celestial beings. They are not. (They are burning flames of passion with the bravery to do the unconventional). Accord them the decency of recognizing the talent and work in them that YOU have sought out. Their art is property, kama shamba tu.
  3. Try approaching these creative’s directly. Often times when a third and fourth middleman is involved, a lot gets lost in translation.

That is all. As you were 🙂

First blog post

Greetings Earthlings!

First ever EVER blogpost coming through!

My name is Que, but the government calls me Juma, Immaculate Juma. I am an artist (both visual and performing) and an Advocate, born and bred in the beautiful City of Nairobi.

Just to sort of give you a feel of why I started this blog, allow me to bore you, just for a minute or two, with my life/self-discovery story.

Growing up, being both an artist and lawyer didn’t really quite add up for me, especially when I started out law school. I can’t tell you the number of times I had melt downs thinking how confused my future would be!…or the fights I had with Mr. and Mrs. Juma. See growing up, there’s a certain inclination (more like an ultimatum) that society imposes on you i.e. to choose a path, one path. You are supposed to then stick to this path, and be uber successful in it and then become the one in the family that every other offspring of the greater clan is compared to. The “Be more like Nani” child. But when you have all these things that set your soul on fire, you get horribly frustrated at these boxes you are told to chose and fit into!

Thankfully though, (and before I led my own Madaraka rebellion) my parents allowed me to do both. Did it get easier? No. Because now this time, I had to excel at both and if I fell back in any of them, blame would be squarely mine. Eh, pressure.

At some point, I decided to juuuuust wing it. Do both, try to be good at em and see what happens; life’s lesson on faith. This is when I got my eureka, my ndani ndaaani, my YAAARS moment!! I came across laws governing the arts! Don’t hate, I didn’t know they existed. And from then on, my pretty little head knew the direction I would take. Intellectual Property Law.

This blog is therefore my way of talking about IP issues, moreso those in the Arts, without all the lawyer jargon that most artists can’t be bothered to get into. Trust me, I’ve been aroud fellow artists who see contracts and all the ‘whereas’ and ‘herewith’, throw in some ‘ab initio‘ salt and suddenly everybody develops selective blindness. And I get it.

So in my maiden post I would like to first, thank you for actually reading my maiden post hehe, and to welcome you to ArtLawKenya be giving you snippets of everything and anything about arts and the law, more specifically in Kenya, as well as welcome discussions on the same.

p.s I will never pretend to know it all, and as such, edify me with what you know, and what you think I forgot to add.

As we journey on, Buckle up!

May you thrive in your artmosphere today.

Bless.