THE MAGIC THAT IS THE WHITE ELEPHANT ART LODGE.

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 ‘Give a girl the right pair of heels and she can take over the world’.

Said by ‘they’

They lied.

Anybody who’s had the misfortune of seeing me attempt to walk in five and above inch heels would rate my walking (read Hulk impression) a strong 2/10.  It’s nothing new if you ever meet me at wherever, and I’m in my trusty ol’ ngomas or boots or flats – basically any footwear that doesn’t have unresolved issues with gravity or my knee structure.

But there’s a method to this madness dear reader. See these red tired girls?

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They’ve seen places my twice-worn, blue, six inch graduation heels haven’t. They’ve gone on almost every single bad-decision-making escapade with me – these my non-judgmental soles. They’re comfortable. Cosy. Easy to wear. I like to imagine that if there were ever a shoe world with shoe people, then they’d never be the cool kids. They’d be ‘others’ – the wallflowers who don’t necessarily have snap chat accounts; who don’t insist on meeting up for drinks at loud joints Friday through Saturday. No. These girls? They’d probably have their headphones taped to their little shoe heads on blast 98% of the time, listening to everything from Jason Mraz to Jah Cure to DMX to Abba. They’d be respectful girls though, with hidden ‘Serena William’ strength – so don’t try em. They’d constantly be mistaken for shy loners…but they wouldn’t mind it. On the contrary, their constantly day dreaming selves would be too busy figuring out what that cloud is shaped like. 

The method to the madness. . .

See then how it was a no brainer that they’d be the babies to take the skies with me and safely deliver my curious self to the White Elephant Art Lodge?

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Thing is, I’ve had a strong desire to see an art centre/gallery outside of Nairobi. S.T.R.O.N.G. Do not get me wrong, Nairobi is the most vibrant art destination I’ve engaged with. I’ve found everything here. The installation artists, the conceptual artists, the art fairs and art talks, the exhibitions and studio openings – all of it!

But I was made here…so I can’t quite call it choice more than it is chance – a force of circumstance. It may be the reason that I have this unshakable belief that there are many more unexplored art centers and galleries out there. You know how the African proverb goes – until the lions learn how to speak, the story of the hunt will always glorify the hunter? Same rationale. I figure there’s gems the world – okay me, I – haven’t discovered yet, and if given the chance, could completely transform my way of thinking.

So four weeks ago, I had business in Mombasa. But detours must be had, otherwise, what is dangerous living? I especially wanted to visit Malindi while there because I have an inexplicable liking for this town.

Curiously, I typed ‘art places in Malindi’ in the search bar.

The results worth checking out for me were two – The White Elephant Art Lodge, and The Malindi Museum.

Fastforward to Friday 28th June…

The plane touches down and immediately the smell of humid air whacks me across the nozzle. Smells awful. Sisi kama watu wa highlands hatujazoea hii hewa nzito (translation – I’m happy to be here!)

I’m not sure where to go next, or if the Lodge is one of those familiar places to the locals there – like ‘Jiweke’ is to Nairobi millenials here. But I leave the airport with crossed fingers, heart in hand and big bag in tow and ask a tuk tuk guy parked outside if he knows where the lodge is.

He does. Joy!

15 minutes later, I’m dropped at this tall, medieval looking, very intimidating big gate. I’m almost hesitant to get out of the tuktuk, but before I’m given a chance to second guess myself, a grinning Maasai-shuka-clothed man comes to greet me – his name is Simon.

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Tuk Tuk guy to Simon: “Nimewaletea mgeni

Simon: “Eh. Naona. Asante. Mgeni karibu sana

I smile, still unsure.

Simon picks up my bag without a word and enters the gate. He starts leading me to the reception desk. I follow him closely, all the while gawking at how beautiful this place is. I’m already so excited that I want to skip past the ‘pass by the reception’ bit and the pleasantries, and get to the ‘see everything’ bit. Dorah is dying to explore mate!

(You guy my guy, there’s a tall, giant woman sculpture at the entrance of this large, tall, stone building that’s shaped like a pyramid near the gate. And get this, there are two roaring lionesses behind her! This woman is the captain!)

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When I explain my reason for visiting and the nice lady at the reception allows me to put my bag down, I command Simon to point out all the galleries and leave me be. He’s gracious; he points them out, sticks with me through the first gallery and then leaves me to my own devices.

Here are pictures of the first space…

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MAGIC ELEPHANTMAGIC ELEPHANT 2

Then of the second….

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And the third…

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And I lost count by this point because these are the grounds…

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By this point I want to denounce Nairobi and live here with jumbo over here. Loyalty is overated no?

I’d completely lost track of time when it hit me that I had to leave. 

“But I’m thirsty…and I’ve got questions.” Myself says to myself. “Let’s find a drink first. Then let’s find the owner.”

I ask for directions to the restaurant and am pointed in the direction of the place I’d just been to. I’d missed it. I walk back and walk into a restaurant that makes me feel like I’m in 1940 something old coast. 

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“They allow people to eat in here!??But it’s so pretty! HOW!”

There are horses carved on the wall, made out of wood, and the ambiance is nothing short of heaven. The rustic vintage furniture caught me, that and the fact that everything is white.

I have my latte then go off in search of the owner of this marvelous joint.

But “Mzee hayuko”, they all say.

I’d later come to find out that this ‘mzee’s name is Armando Tanzini. So, obviously I ask, “atarudi lini?” They don’t look sure of when.

Well then, therein lies my next excuse to visit Malindi again!

So here’s a link that will tell you all about the White Elephant Art Lodge . The White Elephant Art Lodge  C’mon, click on the link to their website to learn more.

Remember when I spoke about untold stories? This is like a Seven part-Game of Thrones-sequel.

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Also, P.s. somebody please call up Bata up and tell them I’m ready for that endorsement deal yah?

Have a lovely week!

*ALL COPYRIGHTS AND RELATED RIGHTS IN THE WORKS IN THESE IMAGES BELONGS TO ARMANDO TANZINI .

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WORLD, MEET STUDIO SOKU.

What’s tall, bright-eyed and blue, has two legs, spews inappropriate jokes and once single-handedly defeated a village in the Amazon basin? Maggie Mwangi!

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Okay maybe not blue, but she’s definitely bright-eyed with a great personality.

So why are you here Sir? To read Maggie’s review on the opening of Studio Suko? Why then come on in!

 

WORLD, MEET STUDIO SOKU!

– by Margaret Mwangi (ArtlawKenya contributor)

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In the heart of South B lies Studio Soku; a new, very well-lit, quaint gallery, which also happens to serve as a studio space. The art space, recently opened by Richard Njogu and three other artists on 24th March at 10.00 a.m, was officially opened with an exhibition that showcased some of the works of the three artists, each with their own individual unique style and personality. I got a chance to speak to two of them, who despite founding the space, have also featured works in different galleries across the country; Jeremy Sonko and Richard Njogu.

First up we have Jeremy Sonko.

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He is a visual artist who has been practising art for 10 years and counting. His craft is unique and his art pieces immediately captured my attention as I entered the space. He had a variety of works on display – from drawings to paintings.

I was particularly interested in the women drawings displayed because they each seemed to be telling different stories.

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I asked him to explain the pieces to me and where he derived the inspiration from. Jeremy explained how his reading of a book titled ‘Thank you for having me’ by Maureen Lipman shaped the series. Each drawing in the series was inspired by the different characters in the book and as such, he drew each image on a compilation of pages from the book. The pages that formed the boundaries were slightly burned around their edges as shown below.

In his paintings, however, Jeremy focuses on cubism as seen in the colourful paintings he presented. Cubism is an early 20th-century style and movement in art, especially in painting, in which perspective with a single viewpoint was abandoned and use was made of simple geometric shapes, interlocking planes, and, later, collage with different colors.

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Up Next we have Richard Njogu (pictured below)

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‘Richie’, as he is fondly referred to by his friends who attended the opening of Studio Soku, immediately met us at the entrance to the space offering each visitor ‘the uji benda’ – a gourd of grey sour porridge. When I got to chatting with him, he explained to me that he refers to himself as the Deconstructive modernist vinyl working art guru. Speaking to him, I learnt about his passion for art of many years which continually influences his evolution.

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Richard’s exhibited art pieces in the space’s gallery were diverse celebrations of different legends in history from the likes of the Late Jomo Kenyatta and Fela Kuti to the likes of Nina Simone.  His choice of media is mostly composed of broken vinyl records on canvas boards; these he recycles and cuts into pieces to make these images.

Me: How long does it typically take you to finish one of these? (Pointing to the piece below of Mzee Jomo)

Richie: Approximately a week…maybe more, maybe less…

Me: Take me through the process, from conceptualization to fixation?

Richie: It’s not as exciting as it looks; *smirks* its breaking records and then breaking, and more breaking. Not too interesting, well maybe until you turn up some Miriam Makeba and then stuff escalates real quick!

One can tell that he puts a good amount of time, patience, and passion into his work.

OVERALL, the studio opening was a success! It drew in a variety of artists and art lovers, both young and old, with most staying on to interact with the artists about their pieces and get the stories and inspirations for all of them. This goes to show how much art is influencing the younger generation in a positive way.

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Studio Soku has been a work in progress for Richard and his partners for some time. We are looking forward to attending more art exhibitions at Studio Soku and watching it grow with more budding young artists being a part of it.

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(from left to right Jeremy, Maggie and Richie)

To learn more, kindly follow their IG @studiosoku.

Thanks for stopping by. Sending positive vibes your way  XX

and remember…PIC7

(pictures courtesy of Margaret Mwangi and Immaculate Juma – neither of whom assert any copyright in the photographed works).

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ARTAFTER5’S OPENING . . .ABOUT LAST THURSDAY.

Are you currently experiencing life at a rate of several wtf’s per hour?”

“Would experiencing Art after 5 with ‘ArtAfter5’ brighten your 9-5 routine just a little bit more? I think it might”

Today morning (this was written on 25th September. . .please teleport with me) as I was headed to work, I got caught up in traffic on Uhuru Highway as per norm. Between the countless glances at my watch, the panic, and wishing the cop who stopped our lane would go limp in the hands, a thought crossed my mind that had me smiling to myself.

Thought No. 1 – the irony of always being trapped in traffic on this road called ‘freedom’…because well. . .NotYetUhuru.

Thought No. 2 – “Tomorrow’s Friday…before long it’ll be Saturday – the weekend! We thank Jesus. . .

Thought No. 3 – “. . .It’ll kick off spectacularly. Why? Well because contrary to the usual debauchery I tend to partake in on Thursdays’ as I throw my mini-TGIF-celebrations, today I get to do things a bit different. Why? Because of a whatsapp message from Victor Ochieng. It’s got a time stamp of 10.30 a.m”

He’s sent an invite...

I said yes…

‘BEYOND THE IMAGE’ EXHIBITION

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The exhibition began at 6. 

We all trickled in, welcomed by a great ambiance of subtle music in the background.

The exhibiting artists stood in different corners on the Second Floor of Karen Landmark Shopping Centre, mingling with the crowd and nibbling on the various bitings served; as the rest of the guests walked about viewing the works on display. 

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Before long, our attention was called to order by Ms. Vania Wambua, who sweetly shushed us to get the show started!

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Accompanied by Victor (the sender of the invite), they gave a brief introduction about the exhibition and the organization known as ‘Art After 5’.

From my understanding of the show, the title ‘Beyond the image’ was a play on words to explain the proverbial ‘there’s more to this than meets the eye‘.

Granted then, the pieces exhibited seemed to each have a back story and were curated to tell it; a story told through the joint exhibition of Abdul Kipruto, Njogu Kuria, Deng Ajuech – Nak and James Dundi – Obat; 3 Kenyan artists and one South Sudanese artist.

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Mixed media metalwork by James Dundi Obat

As you walked in to the space, you were first met by this beautifully crafted car (pictured above), aptly placed at the entrance, almost as if it were your designated driver to show you through and take you to the country of music; the piece right next to it. A country whose flag is made up of vinyl records pieced together; melted into conformity with each other with an essence of community and togetherness, where the people, through music, find new ways to communicate.

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Mixed media vinyl piece by Njogu Kuria (pictured above – with the headphones obviously :))

In this the land of music, like any other land, I figure there are different types of people.

The first person to meet you is this man.

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 Mixed media metalwork by James Dundi Obat

He seems to have a crown on his head. Could he be their leader, extending a formal welcome to you? Could he be an elder, a man holding within his being, eternities of knowledge and life’s mysteries, for anyone who so cares to drink from his cup? It’s open to your interpretation really, so until we know for certain, we keep to our journey, like the devoted pilgrims that we are.

On our way we go.

We then meet two girls; one who blew the petals off a flower, who seemed to live in a world of fantasy; and the other, whom despite being a beautiful masterpiece, seemed a tad bit shy from all the curious eyes looking her way. But again, remember, there is more to each of these pieces than meets the eye.

Pieces by Deng Ajuech-Nak and Abdul Kipruto, respectively

Further along, we saw these 3 works. Their voices were silent. Except for the ink printwork depicting their stories of capture, they said nothing.

Woodcut print pieces by Abdul Kipruto

We then met this curious colourful soul, undeterred by the countless eyes glancing her way. This soul who had only one thing on her mind…music. And she wasn’t afraid of showing it. Proudly so.

AAF 12 Mixed media vinyl on canvas by Njogu Kuria

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Our journey through the pieces was delightful.

Even as you left, you were bade a mighty fine farewell by this man playing his traditional musical instrument. He looked very pleased with himself.

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Mixed media metalwork by James Dundi Obat

Each of the exhibiting artists introduced themselves and their work and at the end, ArtAfter5 did the same.

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Abdul Kipruto

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James Dundi Obat

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Njogu Kuria

‘Beyond the Image’ ran for 3 weeks and closed on 12th October 2018. 

ABOUT ‘ART AFTER 5’…

“We believe art is a venue for expressing our cultural identity, expressing our history, expressing our thoughts and passions…“

Art After 5 is an initiative founded by Merita Technologies, a Technology and Software Development Company that acknowledges the opportunities available for young people in the arts.

The idea behind the initiative it is to promote amateur artists, professional artists, any type of artist really, who want to showcase their art in a very cosy, informal setting.

They plan to achieve this goal by having exhibitions on a monthly basis where they will invite artists to come discuss what is unique about their art and some of the challenges that they face.

I see your curiosity in why a Tech Company would venture into the arts. I was curious too. So I asked.

The Answer? The team behind ArtAfter5 is the connection.

The ArtAfter5 team come from different professional backgrounds, but each of them is conscious of the value of art in shaping culture and society. They all have a common vision for an initiative aimed at empowering young people and promoting cultural awareness, and art was the only medium capable of driving such an agenda.

ArtAfter5 is therefore an initiative aimed at elevating African artists and African culture. 

They maintain that the initiative is more than just exhibitions, it’s an experience. More than holding monthly exhibitions, they also intend to carry out marketing campaigns for exhibiting artists and their artwork. They hope to keep the event fresh and exciting. 

Recently…we seem to have opened up our mind space to art…in all mediums… and just one thing led to another and several things started to line up and we decided, hey, this would be a good thing to do. We started doing some research and realized that traditional galleries often times aren’t as easily accessible to up and coming artists and to artists who are different, or not connected – and they don’t get a space or a chance to show their work. So we thought that would be a great opportunity for us to jump in!”

Their next Exhibition, titled Faces and Figures, opens tomorrow at 6.00p.m with a line up of 5 female artists, namely: Nadia Wamuyu, Husna Nyathira, Joyce Kuria, Daisy Buyanzi and Mukami Kingoriah. The show will run till November 13th. 

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So just before you hand over your morals to do some sketchy TGIF stuff tomorrow, allow yourself to experience Art After 5, with ArtAfter5.

See you there!!xxx

Also, follow ArtAfter5 to keep a lookout of what they’re upto on:

Facebook: @ArtAfter5ke

 

THE THIN LINE BETWEEN BEING A SOCIAL MEDIA INFLUENCER & COPYRIGHT, PRIVACY & IMAGE RIGHTS ‘INFRINGER’.

OOOR …

WHEN KOT DISCOVER YOU LIED…A COMMENTARY

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If the creativity and the speed-of-meme-creation of this country could be harnessed or converted into actual functional energy especially when we decide to troll someone online; no lie, we’d be a world leader; right up there with Russia. Maybe this could be a Uni project for Tech/Engineering students at some point…?

I can only imagine how it would feel to wake up one morning, sun shining and . . .(INSERT EVERY LIE YOU EVER USED IN YOUR CLASS 3 COMPOSITIONS ABOUT BIRDS SINGING AND TOAST WAFTING AND YOUR MOTHER MILKING COWS)… 

Your phone’s got 21 missed calls and 16 unread messages, all from your family, friends and colleagues back in Kenya. The little red notification boxes on your Instagram and Whatsapp icons have (+1009) and (+801) respectively.

You stare at your phone wondering what the actual hell happened in the 8 hours you’ve been asleep. Before unlocking the madness, you begin eliminating every possible situation that would warrant such…

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“Did someone have a baby?

“Did they finally find TuPac – dreadlocked with a beer belly in Zanzibar?

 “Has Apple finally inspired Safaricom to sell dual sim phones? Or did we all just time-travel to 2012…

“Ah, better. We cleared all our debt owed to the Chinese and they’ve given us back our souls.”

But no.

None of these would have this much of a buzz to get all your modes of communication this fiery.

So, you hold your breath, and you start with the calls…then the messages asking ‘if you’re okay’ and to ‘leave the bullies alone’. There’s even a snarly one from that colleague whose job she still believes you stole – the classic “You had it coming you *****”

“Why wouldn’t I be okay…? What did I have coming…?” you wonder…

But then you get onto Twitter and Instagram and rethink that answer because KOT have landed on you…hard. What is mercy? What are chills?

They’ve even dug up pics of legs that you flaunted as yours…

… And this is the day you learn a hard lesson not just about Copyright, but about Privacy and Image Rights.

How about we break it down?

  • When you take someone else’s picture from their page and front it as yours, this is what we call, copyright infringement. (We’ll get to the issue of public domain, worry not).

 

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  • How about when you use a person’s image without their knowledge/consent (for commercial gain)? THAT is what we call ‘violation of their image rights’.

 

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Copyright Infringement.

In this post here Copyright Complexities in the Visual Arts I talked about the criteria used for deeming a work as ‘copyright-able’.

Question: But what constitutes copyright infringement?

Answer: The UNAUTHORIZED reproduction, distribution, modification and performance of the work. Basically if you make copies, distribute, modify or perform someone else’s work without their consent. It is an offence.

Case in point? The photograph of the recipe and the pizza.

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See Photographs within the Kenyan Copyright sphere fall within the Category of ‘Artistic Works’. The copyright owner in a photographic work (also known as the ‘author’ of the work) is the one who is RESPONSIBLE FOR THE COMPOSITION OF THE PHOTOGRAPH.

The duration of copyright in a photograph lasts for the lifetime of the photographer, plus 50 years (i.e. year of death + 50 years).

So, can she be held liable for copyright infringement?

Well, yes…but it’s complicated…

The rise of the internet and its use has imposed ‘new’ liabilities on Internet Service Providers (ISPs).

In the States for example, the Digital Millennium Copyright Act (DMCA) acts as double edged sword in that: while it imposes on ISP’s the obligation to pull down any infringing content, it also indemnifies them from any claims of contributory copyright infringement when their users misbehave and copy others content.

Therefore, because of this Act, the social media platform in question i.e. Instagram (incorporated in the US), has its User’s Policy (Terms and Conditions) of 2018 which secure the Intellectual Property Rights of its users. This is of course in anticipation of the millions of infringement actions amongst its users – which is detrimental to any ISP if you’re trying to build a ‘community’of users – there must be security.

See it has a ‘Help Centre’ where a copyright owner can lodge a complaint. Once this complaint is verified, then Instagram will take down the infringing material.

So the worst thing that may happen to our beloved social media influencer will be the deletion of the infringing content from her profile if reported. Not sure if the copyright owner would have time to personally go after her…what with the different copyright laws in the US and Kenya…

Remember, most material found on the Internet is protected just like any other material (unless otherwise indicated). These works do not lose copyright protection simply because they are posted on the Internet.

The only time you can legally use someone else’s copyrighted work is when this work has entered the public domain. Public domain is defined as:

‘The status of any creative work, invention, or device that is not protected by copyright law. Such items are available for use without permission. Often, works enter the public domain after patent, copyright, or trademark rights have expired or been abandoned.’

However, educators are allowed to copy, distribute, communicate, or perform, works found on the Internet to their students, provided that:

  1. The work is properly cited (e.g., source, author, performer, maker, and/or broadcaster),
  2. The work is publicly available (e.g., access is not restricted by a Technological Protection Measure),
  3. There is no clearly visible notice (not just the copyright symbol alone) prohibiting the intended use, and
  4. It is apparent that the work was not made available in violation of the copyright owner’s rights.

These constitute the Copyright Infringement Defense of ‘Fair Use’.

P.s: In Kenya, Artistic works fall into the public domain according to Section 45 of the Copyright Act if:

  1. The work’s term of protection has expired;
  2. The work is in respect of which authors have renounced their rights; and,
  3. Foreign works which do not enjoy protection in Kenya.

 

Privacy & Image rights.

Also known as personality rights, image rights are rights that give you the exclusive control over your image.

Let’s be honest, any image can be commercialized nowadays. Given the right angles and the right editing, and oh glorious filter; any photographer can not only make you look like a million bucks, but can also go over and above to sell your picture to a random Ad agency. Before you know it, you’re on billboards and posters smiling next to coffees you’ve never drank or gym equipment you’ve never used. This actually happened to a cousin of mine!

—————> (p.s dear makers of filter, girls all over the world remain forever indebted to you!)

For famous people – athletes, actors, singers, footballers, etc. – their images can be a real valuable commodity. By lending their face to a product as a means of endorsing it, they can rake in huge sums while at the same time increasing the sales and profile of the brand they choose to promote.

But here’s the great part about Kenyan law; you DON’T have to be a celebrity to enforce your image rights!

Just ask Mada Hotels Limited.

In 2012, they used the image of one of their past employees in an advertisement without her consent.

In brief, the Plaintiff, Ms. Rukia, had been on attachment at Mada Hotels between 1997 and 1998. At the time, she was working as a receptionist. While working there, the Hotel Management took some photos of her just to advertise their hotel, and indicated that it was a one off thing. She left the hotel and a few years later, started working at Kenya Airways.

One of the conditions of her contract with the Kenya Airways was that she was not to associate herself (by modelling/advertising/lending her face) with/to other corporations. Lo and behold, Mada Hotels, in 2011 (14 whole years later) used these same pics again in an advert they put in the airline’s magazine. ‘Course her employer was cross.

But that’s the thing, it wasn’t her fault. It was the Hotel’s.

She had not given them unlimited consent to use the picture as and when it was taken.

Here’s what the Court decided:

Rukia’s case was on the invasion of her human dignity and privacy. These two are fundamental rights protected under the Bill of Rights in the Constitution. Article 28 of the Constitution states that “Every person has inherent dignity and the right to have that dignity respected and protected.” And Article 31 protects the right to privacy. A person’s privacy includes his or her identity, likeness, etc.

The High Court of Kenya would thus have no hesitation at all in according protection for human dignity and privacy where these are exploited for commercial purposes without consent. In Justice H.P.G Waweru’s words;

“It was an unacceptable exploitation of ones photograph or likeness for commercial purposes without their consent. It was an invasion of her right to privacy and human dignity.”

Needless to say, she won.

She got an injunction to stop the Hotel from using her image and pull down the advert. The High Court was also of the opinion that she was entitled to some damages for the invasion of her constitutionally guaranteed rights of human dignity and privacy, hence, it awarded Rukia Kshs. 300,000/- in general damages AND costs of the suit.

Rukia won on the strength of her evidence. Some would say she got off lucky.

Why?

Because employment contracts aren’t always as clear cut. Some of these types of contracts have tailored clauses that have ‘model release’ types of engagements. Model release being a release typically signed by the subject of a photograph granting the photographer permission to publish the photograph in one form or another. The rationale being this: If I’m your employer, I should be able to use your image to promote the best interests of my company. Thus by signing the contract, you relinquish your image rights where your image is captured in the ordinary course of work, as was the case in Sikuku v. Uganda Baati HCCS No. 0298 of 2012.

So…

What does ALL this mean in general?

For Creatives:

  1. Have a look at this Article here Copyright Complexities in the Visual Arts in Kenya
  2. See No.1.
  3. See No.2.
  4. If you don’t necessarily agree with all the constraints that copyright laws have, and if you love to share your creativity with the world and enrich our global culture, they you can join online platforms that allow you to do this e.g. Creative Commons (CC). See link about it here Share your Work

(p.s CC recently launched its Kenya Chapter so keep a look out for news and events they’ll be setting up!)

For Social Media Influencers:

  1. For crying out loud, ya’ll are creatives too, so create your OWN content. We need to embrace a very basic standard of ethics in the least in the industry. C’mon, put in the work…or … KOT. Don’t front an image you picked from someone else as yours. It’s in bad taste. Yes you’ll get the likes, but it’ll catch up with you.
  2. If you want the image that bad? Pay the owner. Some take cash, some take recognition (exposure currency). Using the “@” button never killed nobody.
  3. Embrace the ‘Take Down’ Notice. Once you get a complaint from the actual owner of the image, do NOT take it lightly. Take down the damn thing. While you do, save some face, apologize. Again, I promise you, you will not die.
  4. You can’t use the defense of Fair Use if your unauthorized copying is for commercial gain – in your case – elevating your online portfolio.
  5. There are sites that actually have images you can use without worrying about copyright or privacy claims. Heard of Unsplash.com?

***End of Rant***

Sources:

  1. Constitution of Kenya 2010;
  2. The Copyright Act, Laws of Kenya;
  3. Rukia Idris Barri v Mada Hotels Ltd [2013] eKLR; and,
  4. Image Rights in Kenya’ by Victor Nzomo – IPKenya Blog.
  5. https://www.inbrief.co.uk/human-rights/image-rights/
  6. https://www.lib.sfu.ca/help/academic-integrity/copyright/internet-public-domain
  7. https://www.internetlegalattorney.com/who-gets-dmca-protection/
  8. Images courtesy of webpages: BarakaFM and PulseLiveKenya.

 

 

TODAY IS A NICE DAY TO REVOLT…NO?

The Revolution introduced me to art, and in turn, art introduced me to the Revolution!”
― Albert Einstein

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Revolution – [noun] – an attempt by a large number of people to change the conditions, the ways of working, which affects a large number of people. 

Lobby – [verb] – to try to influence a politician or the government and persuade them to support a change in the law.

Lobbying is a type of revolt. It is an art; a skill; an action that must be done with the breastplate of knowledge, the presence of mind and the tact of tongue. Granted then, a revolt need not always be characterized by displays of aggression or violence.

Effective lobbying is sort of similar to forcing the ‘powers that be’ to empathize – to walk a mile in your shoes so that they can have a look at the problems and challenges you face, BUT through your eyes.

And what better way to do this than by inviting them to the table to have some tea and talk?

This is what the Kenya National Visual Artists Association (KNVAA) did.

They invited us to the table to talk.

They put their house in order, they invited us into their home; they set the table with the finest stuff and prepared a compact agenda for a meal.

Not sure who KNVAA folks are? Well then you’d better come in and have a seat too dear reader. Quiet though…the big guests have already arrived…shhhh. . .Quiet steps.

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Q. What/Who is KNVAA?

A. The Kenya National Visual Artists Association (KNVAA) is a body of artists that seeks to unite Artists in Kenya. It was first founded in March 2012 by an officer from the Ministry of Justice, National Cohesion and Constitutional Affairs under the name ‘Kenya Visual Artists Network’. However, due to internal conflicts, the Network immediately stalled in its foundation stages, that is, until 2016, when it was revived in a meeting held at Nairobi National Museum. It was at this meeting where it changed its name from Kenya Visual Artists Network to Kenya National Visual Artists Association. Old skin was shed and KNVAA was then immediately registered with the State Department of Culture and Arts on December 7th, 2016.

Q. What does KNVAA do?

A. The purpose of forming this association was to unite and regulate operations in the Visual Arts industry in Kenya; to create avenues to promote and protect Art entrepreneurship as well as build valuable links between Artists and the Government through the relevant Ministries.

Q. How does KNVAA plan to do this?

A. KNVAA abides by a host of objectives which include:

  1. Fostering inter-cultural artistic exchange and linkages between artists and the Government for necessary support and representation;
  2. Organizing and promoting events locally and internationally with the support from Government;
  3. Promoting the marketing and entrepreneurship skills of its members, promote and protect Visual Artists as well as link them to respective clientele;
  4. Creating educational resources for Artists by establishing a Fine Art library from National to county Government level to facilitate academic references and information resources for Artists;
  5. To exhaustively exploiting all local art marketing avenues in creating selling points for Kenyan artists to sell directly to the market across the country, without unnecessary exploitation from art brokers;
  6. Enhancing and nurturing creativity in Kenya, by organizing major artistic events and festivals that includes Art exhibitions, Workshops, Art residences, Symposiums, international artistic cultural exchange programs and Annual art competition Awards in various categories to encourage, up bring and spur artistic enthusiasm in young and upcoming talents in Kenya from counties to National levels; and,
  7. Influencing formulation of legislation, policies and Art management structures in Kenya through the relevant ministry, as well as create structures to initiate and ensure continuous documentation of Kenyan Art for international exposure to enable marketing expansion as well as raise the value of Kenyan art in international market; among others.

*********

Now that we have met the hosts, let’s also meet the rest of the guests seated at their table shall we? Would be rude not to shake everybody’s hand no? Great!

At the table we’ve got:

  1. Kiprop Lagat – Director, State Department of the Ministry of Arts and Culture – (he’s the chief guest btw so as you can imagine, the good plates have been brought out *growingupAfrican);
  2. Naftal Momanyi – Founder and Chairperson of KNVAA and seasoned Sculptor;
  3. Artists who serve different positions in KNVAA namely; Remy Musindi (Vice Chairperson); Martin Ndung’u (Treasurer); Maina Maseeti (Chairperson of the Welfare Department); Margaret Atieno (Treasurer-Nairobi Branch); Billy Mutu (Secretary);
  4. Lydia Galavu – A representative and Art curator of the National Museums of Kenya;
  5. Gerard Mutondi – Sculptor and Art Tutor;
  6. Roy Gitahi – Director of Art At Work and Chairperson of Wabunii Sacco;
  7. Emily Mukomunene – Literary Artist, founder of Press Africa Writers Association;
  8. Lydia Kitungulu – Heritage Interpreter & Research Head of Public Programs, Central & Western Regions Directorate of Antiquities, Museums and Monuments National Museums of Kenya;
  9. Babushe Maina – Private curator and Art manager based in Nakuru;
  10. Schola Kimanga – Independent consultant; and,
  11. Lil ol’ me; Miss Learned Friend.

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KNVAA 1

Right. Let’s get into it!

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On the menu (The Agenda):

Policy and Legislative Reform in the Visual Arts industry to reform the industry into a vibrant, all inclusive economic sector in Kenya.

Our cutlery (How we intend to implement the Agenda):

A compiled report and draft a memo advising the relevant Government authorities on formulation of stringent policies towards this effect.

Starters (Preliminaries):

KNVAA 4

  • Introductions are done all around, facilitated by the Moderator, Gerard (pictured above), as Naftal makes his opening speech welcoming Dr. Lagat.
  • Right after Naftal makes his preliminary speech reminding us that we weren’t here to ‘eat’ for free, each person present raises their various concerns regarding the industry.

Main Meal (Issues raised):

The challenges/problems identified were grouped into these thematic areas:

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  1. The Identity of the Kenyan Artist. As an artist…who are you? Why do you do what YOU do? Do you document your work? Do you have a role to play in society? Are you making it easier for the future generation of artists to pursue art? Can the gap between older artists and younger ones be sealed?

    The general feeling in the room was that:

    • Identity and image form a crucial part of how it is we want to be addressed – that we want ourselves and our work to be taken seriously, and we must take intentional steps to do this.
    • Talents can be a good source of income and can easily outrank the cheap imports which have flooded our Kenyan market.
    • The challenge to take charge in preserving our indigenous arts and highlight our on the world stage rests largely in the Arts and Culture Sphere.
  2. The Role the Arts plays in the socioeconomic and political growth of the society.
  3. The exploitation of the Local Art Market i.e. the local buyers – vs – overreliance on Foreign Art Markets.
  4. Need for creation of more opportunities and remunerated exposure for Artists.
  5. Encouraged Apprenticeship Programs.
  6. The Role the Government plays in growing the Industry.
  7. Policy and Legislative framework.
  8. Need for Business and Financial Literacy workshops to boost artistic skills.
  9. The Kenyan Arts Education curriculum.
  10. Structural Reform and Standardization within the Industry; and,
  11. The Need for Empowerment of Artists at the County Levels.

These were each discussed over.

Dessert:

Dr. Kiprop spoke last.

He began by appreciating the invite to attend the meeting and the official launch of the Arts Sector Review Committee. He also applauded the good work spearheaded by KNVAA through the commendable leadership of the chairman, Mr. Naftal Momanyi.

A brief highlight of issues he addressed included:

  1. The Policy and Legal Framework Issue.
  • The State is in the process of crafting a National Policy on Culture. A couple of meetings are set for September to get the Cabinet Secretary on board so that thereafter this Policy can land in the House and be implemented.
  • About an Arts Council, he informed members that his office was working towards pushing the Culture Bill. The Bill is also before Parliament. It is this Bill that creates a National Council for Arts and Culture. It was in his interest to see part of the team incorporated in a meeting with the principals to enlighten them on the gaps within the policy before its implementation as a final draft.

But we insisted not to have the Arts swallowed in the Culture Agenda. As much as the two are often interlinked, each have very distinct practitioners.

He heard us.

  • He hinted that he is working with the ministry for the need to rectify this state of affairs; to have the two agendas separated for proper service rendered to the artists. 
  1. Artist Involvement in Policy Reform. He noted with a tinge of regret that contributions from Visual Artists has been wanting, especially when called upon to give Memos on laws that touch on the arts. Other sector players e.g. those in music and film play active roles, we don’t – basically, we don’t make enough noise.
  2. Budgetary Allocation for Arts & Culture for year 2018. 

I may or may not have thrown shade that the allocation given to Arts and Culture in this year’s budget was so indefinite. Funds allocated for the Sector this year will come from revenues collected from Betting and Lotteries. Now pardon me, but that isn’t exactly a figure

Dr. Kiprop acknowledged this, gracefully, but he countered that Betting and Lotteries does generate quite an amount of income, and if worked out correctly, would generate a lot of funds for the Industry. 

  1. Government Involvement.
  • He mentioned that the government sponsored a couple of artists to attend the Venice Biennale last year. And this year, Kenya, through the Ministry of Tourism (?), has again been invited to participate in the 2018 Venice Biennale. The Ministry is again committed toward sending a bigger Kenyan Pavilion and are even in talks with private sector towards funding more artists to take part.

But why the Ministry of Tourism? We don’t know…but according to Dr. Kiprop, the Tourism ministry has a tourism strategy in place that artists’ play a role in.

  • The State will also fund a group of 25 artists to take part in the Afrosino Art Exhibition; an International Arts and Culture Exchange Program in Beijing, China set to take place from end of this month (August) to early September. KNVAA was given a leading role in organizing Kenyan Artists for participation.
  • He acknowledged that the Administration and Management of Culture is now a devolved function. They are however in talks with county governments to set up small gallery spaces at the entrances of national parks. He mentioned that the government would benefit from revenue collection hence the arrangement would be a win–win for both Artists and the Government.
  • The Ministry is still in talks to roll out plans to have an annual National Arts and Crafts shows/festivals to display works from all 47 counties – sort of like the annual Nairobi International Trade Fair/ASK…for those of us who grew up pre-2000 – ‘the Show’.
  • The Ministry will also work closely with the Kenya International Conference Centre (KICC) to ensure that the space newly allocated for artists will be used indiscriminately.
  • Further, the Ministry, in collaboration with the National Museums of Kenya, would like to establish a National Arts Gallery to offer both studio space and residency programs for artists. He pointed out to KNVAA to ensure equitable sharing of such opportunities down to county level. 
  • Lastly,

KNVAA:             “We want positions in the Arts Department at the Ministry. We may not necessarily have the masters and the PhDs…YET, but we’re the ones on the ground with a better appreciation of how the industry works. How do we get in to make more informed changes?”

Dr. Kiprop:      “I’m in discussions with the Public Service Committee to scrap off some regulations and requirements for positions in the arts department.

  1. The Kenyan Arts Education curriculum. In responding to involvement in the academic sector, he applauded the government for the consideration of arts in the new curriculum.
  2. On business structures and financial literacy he urged KNVAA to organize programs and workshops to educate artists on business structures, getting loans, donor funding and grants, tender applications and tax submissions and everything in between. Basically put an end to the ‘starving artist’ narrative. The Ministry would undertake to fund these workshops. Hallelujah!

He did however challenge artists and the KNVAA to:

  1. Keep lobbying for fund allocation at the county level…because…devolution.
  2. Infrastructure-wise, to consider partnering with relevant Construction Authorities to support artist’s participation in construction and development. He informed members that Art at Work is in discussion to incorporate this provision in the design of public buildings. Basically, developers would be LEGALLY BOUND to decorate their buildings with Kenyan Art. Apparently there’s countries that have laws that dictate that a percentage of the funds for construction e.g. 1%, must go towards buying art for the new building. How cool.
  3. Work closely with the State Department for Arts to see how the sector can align itself with the Big Four Agenda of the current government, of course, not losing your uniqueness.
  4. Properly document your work and contributions to be able to compete at with the global market scene. 

FINALLY, he pledged to assign a special officer from the Ministry who will be working with KNVAA to provide efficient communication channels between KNVAA and the Government to streamline infrastructure mechanisms in Visual Art sector in the country.

Our take home bags/doggy bags had:

Homework.

Homework to have more consultative meetings to compile a report and a memo to be presented to Parliament through the Ministry of Sports, Culture and Arts.

That concluded that.

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The KNVAA Art Review Committee was launched.

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Now I am ALL for walking the talk and so far, KNVAA seem to be walking the talk. With support from the Government, they:

  1. Have successfully sent 7 Artists to participate in the East African Cultural Festival dubbed “Jamaafest” in Kampala Uganda for 10 days last year September, 2017.
  2. Are working to send another 3-4 Artists to participate in Asian Art Biennale scheduled for Bangladesh in August 2018, REGISTRATION TO KNVAA.

Would I urge artists to join KNVAA? I would. Why? Because they are actively lobbying for better…for change.

Give them a chance. Plus So far, they are the best bet we’ve got. And hey, if you don’t buy what they are selling, then at least stay plugged in to watch what they are doing until they buy you over.

But here’s why you should give a damn – they have ACTUALLY gotten the government’s ear. They’ve managed to drag to the table the people who are inside the decision making box; the gatekeepers.

Find out more about them here  KNVAA

And while you’re at it, please also check out Wabunii Sacco. It’s a Society for artists – a wide spectrum of artists mind you. The Sacco offers financial products which cover the needs of artists. The real nice bit? They accept artwork as collateral for a loan. P.s.: Wabunii means (creatives).

Find out more about them here Wabunii.com

My parting shot (read disclaimer)- Do your research. Make a VERY informed decision on whether or not to join these subtle revolts. And when you do? Participate. Actively. Get real loud. Remember, freedom of association and expression have not been curtailed yet! And the woman who will bear the man who will curtail them has not been born yet.

Also if you feel there’s stuff we didn’t go over, please, PLEASE! email your suggestion/issue/concern to artlawkenya@gmail.com.

 Thanks for reading!

Have a great week ahead.

Peace!

Sources:

  1. Minutes of the KNVAA Art Sector Review Team held on 10th August 2018 at the National Museums of Kenya, as written by KNVAA Secretary Mr. Billy Mutu.
  2. Photographs by Maina Maseeti and Immaculate Juma.

 

WHY I LOVE KENYA.

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What do you particularly love about Kenya? (folks...Let’s be nice pris!)

In January 2016, I attended an exhibition discussion at the Goethe Institute of a video installation by Wambui Kamiru titled “Who Am I, Who We Are”. In it, she seemed to be investigating the fibre of the Kenyan society, questioning our allegiance and patriotism – did we have any?, sort of like what makes us ‘us’.

She walked around the room asking questions…and then she posed one to one unsuspecting chap…

When you think of Kenya…what comes to mind?

Wueh, Kenyans….This guy thinks for a bit then gets his ‘Ah Hah’! “Traffic!” We smirk. Really bro? She walks over to Guy #2. He makes it worse – “Corruption!”. Guy #7 just buries us all. “Tribalism”.

But this is where it gets interesting. The foreigners in the room were on a whole different script and were all “The Beautiful scenery!”, “The people are so warm!”, “Great food!”.

I struggled and still continue to struggle with this disconnect. This is why the “WHY I LOVE KENYA” exhibition was like getting really good news on a Monday. The even better news?

Maggie covered it.

ENJOY!

WHY I LOVE KENYA EXHIBITION REVIEW. 

By Margaret Mwangi –

WILK 10

It’s a quiet and serene space. It’s situated inside the Souk on Dagoretti Road, just across the road from ‘The Hub’, Karen. It’s featured different artists both local and international alike ever since it opened in September 2016. This place? This place is the Polka Dot Art Gallery.

 “Why I Love Kenya” is a joint exhibition that features paintings by 12 artists: Patrick Kinuthia, Coster Ojwang, Nayia Sitonik, Elias Mung’ora, Leah Njenga, Wilson Matunda, Anne Mwiti, Kinyua Kennedy, Damba Ismail, Yony Waite, Caroline Mbirua and David Roberts.

What do they have in common you ask? Well…they are all based in different art spaces all around Kenya. I’m super excited to see what these artists have been working on.

1.15p.m…

The mood is colourful despite the gloomy weather. I’m welcomed with a glass of wine. The venue is packed with art lovers and artists interacting whilst admiring the various pieces on display. And look, there’s a guy with a sax!

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Smooth touch.

I begin to peruse the works getting more and more inspired at the amazing and unique pieces that celebrate our beloved country. Our country truly is something…through these artists eyes there’s much to celebrate despite our challenges..

Walking through the gallery, I come across the works of Elias Mungora, a Kenyan painter who is fast becoming a familiar name in the Kenyan art world and in Europe. He currently works in Nairobi as part of the Brush Tu collective. At a young age he has managed to create a distinct thematic style in his works – the urban Nairobi life. He paints seemingly mundane subjects yet when depicted on canvas, the allure of colour and strokes make these subjects delightful!

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I continue walking and come across the amazing pieces of another household name – Anne Ntinyari Mwiti. She’s an accomplished artist living in Nairobi, Kenya and lecturing at the Department of Fine Art and Design, Kenyatta University. Anne’s studio practice is at the Karen Village in Nairobi. Her artworks are mostly creations influenced by the contemporary world, spiritual expressions and intuitions from within her psyche. Her art is continually evolving through experimentation that creates dynamism that is thought provoking magical. She achieves her objectives through the use of diverse themes, techniques, media and styles. One of her pieces shows what she loves about Kenya – our never say die hustler mentality despite the challenges of everyday life.

Patrick Peter Kinuthia is another Kenyan figurative artist, who calls himself a ‘semi-impressionist’. Patrick has exhibited extensively in Kenya, Europe, Australia and USA. Two of his works gave away his preferred areas in this vast region ; Nanyuki and Narok. His weapon of choice? Acrylic paints.

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Next we have  David W M Roberts, born and brought up in a remote area of Kenya, on the shores of Lake Baringo. His paintings give you a nostalgic feel of the vast landscapes, endless horizons, and patterns of organic form. He uses a variety of techniques to create a personal portrayal of the ever-changing light, colour and atmosphere of the world. These he says have always inspired him, and are deeply ingrained in his art. His mixed media work is also derived from in-situ drawings, paintings, digital and pin-hole photographs..

The above – ‘Baringo Blues’ and ‘Milgis Dawn’ by him on Acrylic using ink, tissue paper & encaustic wax on paper, are part of the exhibition.

Other works by Coster Ojwang, Nayia Sitonik, Leah Njenga, Wilson Matunda, Kinyua Kennedy, Damba Ismail, Yony Waite, Caroline Mbirua are pictured below:

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The exhibition dubbed ‘Why I Love Kenya’ was a success as far as openings go! The crowd  enjoyed the paintings, bought some, and enjoyed the music playing in the background. The artists who attended the exhibition didn’t shy away from the various questions asked either. They went the extra mile of explaining their art techniques used on their paintings.

This was indeed an artistic way to celebrate our beloved country. When artists come together to celebrate Kenya, amazing art work is created.

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P.s The exhibition runs till 12th August. If you can, please make time and go love on some Kenya. We assure you the works on display will having you thinking other things about Kenya other than traffic!

Have a lovely weekend ahead!

Sources:

  1. Polka Dot Art Gallery
  2. Pictures courtesy of Eric Gitonga Photography and Margaret Mwangi

*ArtLaw Kenya asserts no copyright to any of the works or images captured herein. 

ARTISTS RIGHT OF RESALE IN THE COPYRIGHT AMENDMENT BILL 2017 (PART 2)

I’ve been working my ass off just for you to make that profit….The least you could do is send every artist in this auction free taxis for a week.” said Rauschenberg. Scull replied: “It works for you too, Bob. Now I hope you’ll get even bigger prices.” Rauschenberg then shoved Scull and walked away. The two never spoke to each other again. While the sale that evening did not directly benefit Rauschenberg or any of the other contemporary artists whose works were sold (including Warhol, Johns, and Cy Twombly), the result was a rise in prices for their future work sold in the primary market as well.

Judith B. Prowda’s ‘Visual Arts and the Law’

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In my last post (here ARTISTS ‘RIGHT OF RESALE’ IN THE COPYRIGHT AMENDMENT BILL 2017.) we spoke about the introduction of the Artist’s Right of Resale in the proposed Kenyan copyright laws. We went into its basic definition and its intended impact on the Kenyan Art Market. Now that we’ve gotten that covered, let’s dive into the influences that shaped this concept and find out which countries have successfully implemented it, if any, as well as the challenges to its establishment and its downright plausibility in the Kenyan Art Market.

About the Right of Resale…

The origin of this right can be tied to one word – romanticism. Okay two words – romanticism and the French.

The right was first birthed in France as one of the offspring of the Romanticism ideal which recognized artists as geniuses and their art as their children. Romanticism, as the word suggests, is romantic; it’s a rosy, not-always-practical way of tackling issues. Romanticism believes that an artist’s work is a reflection of who the artist is and that it is virtually impossible to separate an artist from their work. It believes that whenever an artist sells their work, they are selling a part of themselves. And this bit of them must be treated with respect, integrity and reverence. Famed writer Chinua Achebe in the prologue to his book titled ‘Arrow of God’ wrote:

“Whenever people have asked me which among my novels is my favourite, I have always evaded a direct answer, being strongly of the mind that in sheer invidiousness that question is fully comparable to asking a man to list his children in the order in which he loves them. A paterfamilias worth his salt will, if he must, speak about the peculiar attractiveness of each child

So this is the whole idea behind the right of resale and moral rights. Respect. Integrity. Accreditation.

It’s Establishment in Different jurisdictions…

In FRANCE, to be able to benefit from the right, your work must first be registered with the government for purposes of authentication; a condition geared toward incentivizing artists to register their work and make it easier for their work to be tracked. Other conditions that must be met are:

  • The artists must be a citizen of a member state of the EU or a member state of a country whose legislation recognizes the resale right of artists of artists in the EU – ‘principle of reciprocity‘;
  • The work must be original;
  • The work must be priced above 750 Euros; and,
  • The sale must take place in France.

There’s however an exemption granted to sellers of art who sell off the work below 10,000 Euros within three years after its purchase.

In the UNITED KINGDOM, the collecting societies tasked with collecting royalty payments on behalf of visual artists are two: the Design and Artists Copyright Society (DACS), and the Artists’ Collecting Society (ACS). Their provisions are more or less the same as those in France, except for one: calculated percentages for royalty payments. These differ with the price bracket of the sale. Royalties in the UK are also capped so that the total amount of the royalty paid for any single sale of a work cannot exceed €12,500.

The AMERICANS (in California) have the California Resale Royalty Act (CRRA) 1977, and may be the only American state with this right (open to correction on this). They’ve got mixed feelings about it though. Some artists champion its enforceability, some don’t – and art dealers and auctioneer’s are deliberately against it. The Courts haven’t done much either; their Supreme Courts have continually refused to review cases on appeal concerning the resale royalty. Suits in their lower courts have also been dismissed on grounds that the right is unconstitutional on grounds of ‘free market’, ‘constitutionality’ and ‘e-commerce’. Just recently, a US Court of Appeal judge struck down final efforts to have artists receive royalties in a suit filed by artists against auction houses – Sotheby’s, Christie’s and the online consumer platform – eBay. The decision has been termed the ‘final nail in the coffin’ for the right of resale in the States.

Different jurisdictions therefore have their own reasons and arguments for supporting or rejecting the resale royalty. Those in support of the royalty say:

  1. Artists should be entitled to a stake in the appreciative value of their work;
  2. The royalty creates incentives for artists to produce better work in greater proportions;
  3. It gives artists some level of bargaining power when negotiating contracts because the right is ‘inalienable’ i.e. it is ‘stuck’ to the artist and cannot be transferred, signed away or donated.
  4. It allows visual artists to enjoy the same royalty rights that their fellow literary and musical creatives have.

(Please note, these arguments are not exhaustive.)

Those who have strongly objected to it cite the following reasons:

  1. Artists are not starving like they claim. They opine that artists are actually said to be the only breed of people who make significant profits in struggling economies. One collector is quoted as having said: If your work and your personality is trash, then you can’t expect to keep getting paid. Why? You as an artist are no different from other skilled labourers. You must improve and better your craft.
  2. The success of the artist depends squarely on the artist, their work and how they conduct their business, as well as the kind of dealers they engage with. The state shouldn’t begin to interfere with citizen’s freedom to contract. Furthermore, state agencies may not be well placed to handle matters that require a level of expertise such as the Art Market.
  3. The administrative costs may be counterproductive i.e. costs of:
    1. Establishing and running a collecting society in a country/jurisdiction that didn’t already have one;
    2. Registering each work created by an artist with a Collecting Society may be expensive for the artist;
    3. Having the society keep track of commercial transactions of all works registered;
  4. Collecting societies would also be faced with complex legal issue of cross jurisdictional enforcement – a problem likely to arise where the market for the art and the artists are not from the same locality/state.
  5. Art dealers and auction houses are insistent that they are helping in building artists’ profiles and thus shouldn’t be imposed on extra taxes. Usually at auctions where an artist’s work is auctioned off for higher prices, the ripple effect is that the artist’s works begin to fetch higher prices in the market.
  6. A further tax may also result in a drop in sales in the art market because of higher prices for works. Business 101 would dictate that the royalty percentage would be lumped onto the artwork’s value by the dealer/auction house/gallery.
  7. Where there’s a levy/tax, there’s always the runners i.e. those who evade it, which could be done easily by avoiding it either through :
    1. Conducting more sales by way of private treaty and doing away with auctions and dealers altogether;
    2. Concealing the nationality of the makers of the works like the dealers/auctioneers did with works from California – which again is retrogressive to the entire basis of moral rights.

Please note again, these arguments are not exhaustive.

Because the arguments against the royalty are more than those for it, there have been suggested alternatives to the royalty such as:

  1. Introducing a Negotiated Resale Right which makes the royalty a choice, not a mandatory requirement, where the artist selling their work may choose to sell their work to a dealer/gallery at a discounted price (a percentage the two can negotiate on) on the condition that they’ll get a percentage from the first sale of their work.
  2. A display right – payments that can be made to the artist every time their work is displayed publicly by a dealer/gallery.
  3. Establishing an Artist’s Trust/Pension Fund that collects royalties across the board and begins to remit amounts to the artist once they attain a certain age.

So what’s the case for Kenya?

Well the royalty right here, if implemented, will dictate the following:

  1. The right will only apply to artworks sold over Kshs 20,000/- a piece;
  2. The percentage of the payment to be made to the artist would be 5% of the resold price;
  3. It would not apply to auctions geared toward charity or works sold through private sale;
  4. The right cannot be transferred and shall subsist as long as the artist is alive plus 50 years after their death.

It would however follow that for a country to adequately enforce this right, let alone have the capacity to do so; their government would have to show willingness and a strong inclination to the protection of moral rights, right?

Are we such a country? Think about it. We’re the country that has the Law Society of Kenya (LSK) – the defenders of the rule of law and justice, the representatives of just society – blatantly copying a photographer’s (Reinhard Mue’s) photograph titled ‘Fire In The Sky‘ to use in their poster advertising the Nairobi Legal Awards in April. We’re also the same country that has ad agencies running amok capturing graffiti pieces in adverts without giving due credit to artists.

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Evidently, there’s still A LOT of work to be done here.

So then as we do this, how can we push the agenda for a successful implementation of the Resale royalty if enacted? How we can push for better recognition of moral rights? The answer would lie in the intentional eestablishment of a culture that implores its citizenry toward respect for copyright and moral rights. Where the resale royalty is concerned perhaps we can begin with:

  1. The commissioning of feasibility studies on the resale royalty in Kenya to gauge its effectiveness in the art market, before and after its enactment, to better inform its implementation.
  2. Seeking the views of stakeholders in the Art Market in Kenya i.e. musuems, galleries, auction houses and dealers, and most importantly the artists on the dynamics of the implementation of the royalty in Kenya.
  3. The formation of a Collecting Society for visual artists, with the help of KECOBO, under Section 46 of the Copyright Act. To do this however, KECOBO may require more funds from the government – a wish likely to remain just that given the budgetary allocations made to the Ministry of Sports, Arts and Culture in the 2018 National Budget.

Whatever the case may be, these are conversations that must be had before rolling out the royalty payment system here.

‘Let us start doing things professionally and stop making excuses for mediocrity.’

– Thom Ogonga

AND IN CONCLUSION…I’m done. Really. This post is over. 🙂

BUT I’m open to hearing from you on what you think. Let’s talk on artlawkenya@gmail.com.

Until then, have a wonderful existence!

Sources:-

  1. The Copyright Amendment Bill 2017;
  2. The Copyright Act Cap 130, Laws of Kenya;
  3. The National and Treasury Budget Statement Kenya 2018;
  4. Visual Arts and the Law‘ by Judith B. Prowda
  5. IP Kenya – https://ipkenya.wordpress.com/2014/07/22/artists-resale-right-how-kenya-can-make-history-in-africa/
  6. ‘Bora Art Fair, ama Art Fair Bora’ http://thealternativewriter.blogspot.com/2017/11/bora-art-fair-ama-art-fair-bora.html
  7. Artsy.net
  8. https://www.adagp.fr/en/user/resale-right
  9. https://www.gov.uk/guidance/artists-resale-right

 

ARTISTS ‘RIGHT OF RESALE’ IN THE COPYRIGHT AMENDMENT BILL 2017.

COPYRIGHT AMENDMENT BILL

DEAR ARTIST: WELL FED OR STARVING. THEY ARE ABOUT TO GIVE YOU ANOTHER RIGHT . . . BUT DO YOU WANT IT?

It’s the morning of the 16th day of May 2018. It’s a big day for me.

You see, it’s my first time.

10.15 a.m.

We are ON TIME! We are actually on time! Praise the Mayan gods. For me – for me to be on time? Sixteen stars have aligned, Trump has deactivated his twitter account, and St. Peter has accidentally let a politician into heaven. Miracle material.

Our hearing is scheduled for 10.30 a.m. so we have a good fifteen minutes to do the ‘headless chicken’ run to find where we’ll be sitting. God forbid we neglect our time allocation . . . or worse…walk in and find them already seated – that’s never a good show.

10.30 a.m.

Everybody from our side is seated, reading their copies of the memorandum that we’ve compiled to present before this Committee on the proposed Copyright Amendment Bill. It’s this Bill that seeks to add much-needed, long-awaited reforms to the current Copyright Act. We’re all burrowing through our papers, readying ourselves for any questions they’ll throw at us.

Hot air cannot be blown here.

See the guy seated on my extreme left?

ALEX

His name is Alex Gakuru. (Apologies for the lighting or lack thereof).

He’s the reason I’m here. He’s my principal – I’ll tell you about this later . . . keep reading darling.

Also on my left are Prof Kimani Njogu and Joy Mboya – Chairman and Vice Chair of the Creative Working Economy Group, respectively.

On my far right I’ve got Wandiri Karimi, newly elected member of the newly established Kenya Copyright Tribunal. She’s proper smart.

WANDIRI

Oh that’s me in the middle with the black dress and the specs. ..Can you tell how far out of my comfort zone I am? No? Could’a fooled me…

11.10 a.m.

They are here.

*Back straightens…*

They walk in with an air – the kind of air that lets you know they’ve done this before…

*The air tightens. Its bloody expectant…*

One by one they trickle in…Each taking his/her seat at the table.                       

There’s something extremely unnerving about sitting in a room with parliamentarians…makes you want to speak up a little louder, deeper, throw up big, fancy, intelligent words and sound like an Einstein fart. The wooden panelled walls, big chairs and long big round tables do absolutely nothing to put me at ease.

11.15 a.m.

We begin!

MEMORANDUM

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Poleni sana kuwaeka. We didn’t mean to. We each seem to have had different matters we were attending to this morning. Unajua maisha ya MP saa zingine schedule yako si yako. We know we were to meet you at 10.30 lakini sahi ni 11.15. But hopefully we can still achieve what we intended to.” says Hon. Kipsang, chairman of the Parliamentary Committee for Communication, Information and Innovation. He’s smiling. He’s collected. He continues “We can start with introductions and then we can go to the agenda for today, sindio?

Yes we can” replies Alex.

Introductions are done and we get into it.

*********

Let me quickly bring you up to speed on how I got here. Here, have a seat. Get comfy. Coffee? No? Ok.

I’m at a Parliamentary Committee meeting with the Department for Communication, Information and Innovation. I’m here as a stakeholder (let me flourish) and a representative of an affiliated group to the Creative Economy Working Group.

My group you ask? It’s the CopyrightX Harvard Law Class of 2018. These guys here.

COPYRIGHTX CLASS

CopyrightX Class of 2018’s meeting with Proff. William Fisher, 25th April 2018, iHub, Galana Rd, Nairobi.

Alex’s organization i.e. Code-IP Trust, in partnership with the Go Down Arts Centre and Harvard Law School, run this copyright course every year in Kenya for creatives and lawyers. So, for all intents and purposes, he’s my principal.

We are here because we have something to say – a lot of things actually – collectively.

See before Parliament makes anything law, they MUST seek the views of you and I on what we think about the proposed law. It’s in the Constitution. So the stage we are at now is part of the process where we tell them what we think about this Copyright Amendment Bill.

Make sense? Fantastic!

Back to our story.

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Proff Kimani and Alex Gakuru roll up their sleeves (metaphorically of course – these expensive suit sleeves shall NOT be rolled – do NOT roll them. Do NOT try this at home) and begin. Proff Kimani begins to address the Committee presents our concerns on sections of the Bill i.e. open licensing; which Ministry the Copyright bodies should fall under, the governorship of the Kenya Copyright Board (KECOBO), its running and their powers of arrest; the Establishment of a Copyright Tribunal, the introduction of KRA to collect revenue on behalf of CMO’s. . .

It’s a lot.

There’s also a lot of things in the fine print that we also feel need reworking; some deleted and others added.

But dear reader,…you know I am biased right?

Yes. I am a biased little mortal. Horribly so. Plus you and I hang out a lot here, so you know me by now. You can already tell which angles I’m hitting from.

My ears and eyes are zeroing in on what this Bill means for the visual arts in particular. Where’s our cake. Are we eating it?

And here’s what I’m seeing:

  1. The introduction of new phrases particular to the visual arts like ‘Art market professionals’, ‘Commercial Resale’ ‘art buyer/seller’, ‘artwork’.
  2. The introduction of Artists ‘right of resale’.
  3. The encouragement of Visual Artists to form Collective Management Organizations (CMOs).

P.s:      visual arts here means paintings, any kind of sculpting, photography, graphics, decorative art – typically art that appeals to the visual senses and is usually in permanent form.

Righto.

I will attempt to take you through these. It may be a tad bit technical, so hang onto your hats, socks – anything.

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The New Terminologies.

 “Commercial resale” is defined in Section 2 (S.2) as the ‘subsequent re-transfer of ownership in artwork from one person to another for money with the involvement of an art market professional. According to S.2, these types of ‘professionals’ include: auctioneer’s, owners or operators of galleries, museums, art dealers or any other persons involved in the business of dealing in artworks.

The need for interpretation of these terms is important because of the new concept being introduced i.e. the ‘Artists Right of Resale’; a right that comes about every time an artist’s work is commercially resold by an art market professional.

The Right of Resale.

So say for example your name is Van Gough Ochieng. You sell your art to an ‘art market professional’ e.g. an art dealer, either through a normal transaction, or at an exhibition. The dealer keeps your work for X amount of years and then sells it to somebody else. What this right means is that you will get a cut from each consecutive sale overseen by any dealer who sells you work – 5% to be exact – minus tax implications.

You may be wondering what the rationale for this right is.

Well for a long time, visual artists such as painters and sculptors have not been able to directly benefit from downstream payments when their work changes hands in global markets. It isn’t entirely uncommon to hear of artists who are barely making a living, yet have their art being sold all over the world for crazy high prices, especially at art auctions.

For example, Robert Rauschenberg, a prolific painter, was once quoted saying these words at an art auction at Sotheby’s Parke-Bernet in New York, after seeing the price his piece was auctioned off for:

 “I’ve been working my ass off just for you to make that profit…. The least you could do is send every artist in this auction free taxis for a week.”

Closer home we have the brilliant Jak Katarikawe. Going by his artistic successes, we could agree that his story should have gone a lot different.

The resale right therefore wants to right this wrong by ensuring that artists receive a small percentage of the sale price of a work when it is resold.

Why is Parliament so hot about it now? Because well, we sorta signed the Marrakesh Treaty, plus AI is now a thing, and technology is growing crazy fast and so Internet Service Providers (ISPs) now have a role to play in preventing copyright infringement.

For the lawyers in the house, ya’ll know about Berne? Yes, it’s got this right too. But we know Berne. . . She like the ex we keep blocking. Barks a lot, but no bite.

ANYWAY. The Bill suggests that Visual Artists form a Collective Management Organization (CMO) to aid in collection of these royalties. And if one doesn’t exist for visual artists, then the Attorney General should appoint an already registered to do the job.

Q. What are CMO’s?

A. They are Copyright Collecting Societies that are meant to collect royalties on behalf of their members who are typically artists, authors, musicians and other owners of copyright in works.

Here’s where I ask; I read a few years back of an Association that was formed for artists by seasoned sculptor – Naftal Momanyi…the Kenya National Visual Arts Association (KNVAA) was the name I think. I read that it had a good number of artist members and that Naftal was ready to kick oppressive ass. Is it still active?

What about Photographers – ya’ll have a guild too yeah? The Photographers Association of Kenya? Which one of you would want to take on this role? Any takers? Because in my opinion, if this Bill is made law, we would MUCH RATHER have a visual arts CMO collecting our royalties than the already existing ones because; accountability. Plus the current CMO’s we have don’t exactly have the best track record, especially within the music fraternity. Ya’ll remember the Elani video…

So that’s it for the intro for now. I know I’ve hit you with a lot, so I’ll keep the rest for the next post. In it, I’m going to go into the Right of Resale in comparison to other countries and how they’ve done it, and what it means for us, especially for our art auctions and fairs – because let’s face it – these reap in a pretty penny!

And at the end of it, we’ll gather round the fire whilst we warm our fingers and ask…is it what’s best for us?

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We left the hearing at 12.15. They listened. They asked questions. They seemed interested. Did I mention they gave us water? They gave us water. Nice folks.

Hon. Kipsang told us that they’d be presenting the proposals we made on 5th June 2018 before the House.

I wonder how that went. You too? Hmm. We wait.

Make sure to watch out for Part 2 of this Post!

Lovely weekend ahead! Also, please keep creating? Thanks.

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Sources:

  1. Copyright Amendment Bill 2017.
  2. Judith B. Prowda’s ‘Visual Arts and the Law – A Handbook for Professionals’.
  3. Thom Ogonga’s ‘The Alternative Writer’.
  4. http://www.wipo.int/portal/en/index.html
  5. http://artauctioneastafrica.com/
  6. https://www.artsy.net/article/artsy-editorial-what-s-at-stake-in-the-artist-s