LIVING BY THE BRUSH. ARTIST FEATURE: PATRICK MUKABI…inspired by a certain Alternative Writer.

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Me:                  Pssstt!…Let me buy you a drink/coffee/something next week? Say yes!?

Him:               Yap. Coke zero.

Me:                 *…..*

Also Me         : Um…Yeah. okay. Done!

7 days later…

It’s a partly cloudy afternoon, big dark threatening rain clouds look on from a distance. I make my way to the Dust Depo Artist’s Gallery at the Railway Museum to speak with him. Judging from this impending rain, I’ve got a solid two hours to accomplish my mission before I make we scatter.

I find him doodling with a marker pen on a huge piece of glass talking to a young lady whom I presume to be one of his students…he’s always got a bunch of young people here. Stuff I admire about him. I pull up a chair and unapologetically invade his space because…chills are expensive. Hugs are exchanged and Coke Zeros given amidst screams of “HIIIII!!!”(Of course from me).

************ brief history ***********

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I met Mukabi in 2008. He doesn’t remember, at least I don’t think he does, but I do. See my groupie default settings remember every ‘somebody’ I meet. Back then, in 2008, I was in high school (put down that calculator!), and our Art Teacher felt it would be good for us, her students, to visit various Art centres to sort of inspire us to further our education in art and design once we were done with Form Four. We visited his studio, back when he was at Go Down Arts Centre, and I literally had to pep talk my shy self-obstructing ass into having a conversation with him. Long story short, that 1 minute convo led to 9 solid years of friendship and mentorship. So when his birthday rolled up this October, I thought I’d buy the man a drink.

*************** back to the studio ***************

THE FIRST HALF OF THE CONVERSATION IS THE CATCH UP. Hii ni yetu 😀

*************

SECOND HALF:

Me: So random question…I read this article by Thom Ogonga titled ‘The Fear of Being Great’ (first of all…it popped up on my timeline courtesy of a share), (written on his blog ‘The Alternative Writer’ on 2nd August 2016). He speaks primarily about mediocrity in the arts; from artists settling for less when it comes to art sales, to the lack of development within the Kenyan Artsphere.

In it Thom writes:

“Once upon a time, our mandate was to nurture upcoming/emerging artists. Are we still interested in that or have they come up/emerged? Are we interested in developing the artist and the Kenyan arts infrastructure or are we just interested in being seen to have some interest? Why are we thinking outside the box while still comfortably seated in it? The message that we are passing is that we’re afraid. Or too intellectually lazy to engage. Or both!”

See full article on http://thealternativewriter.blogspot.co.ke/2016/

Heavy? Truth often is.

There’s truth in this though. Going through the African Art Report 2015 (see link below), only 2 Kenyan artists are ranked amongst the Top 100 African Artists i.e. Wangeci Mutu and Bertiers Joseph, based on: their artist profiles, their turn over at auctions and the number of exhibitions they’ve had at museums and galleries. Any yet…AND YET! “Artists in Kenya “are enormously inventive….Just because they are not fetching £100,000 a picture does not mean they are lesser.” …words from Giles Peppiatt, the Director of Contemporary African Art at Bonham’s auction house in London.

However, I tend to think the cause of this lack of infrastructure is not just squarely on the shoulders of the Artists. Yes, they play the most vital role, but so do art spaces, the government and industry stakeholders.

Me: What do you think about Tom’s article?

P:         There’s a lot of truth to it. A lot of older, more ‘established’ artists are not willing to share their knowledge when it comes to art. They prefer to thrive in the monopoly of being the ‘go to’ faction when art buyers, both local and international, want Kenyan art. Which is strange considering, being a creative, it is really up to YOU to stay relevant, to re-invent yourself, to have people buy your work without manipulating the system by playing an absent role.

Me: How come?

P:         Look, they have established a clientele and their fear is that if they change how they create/their style of painting, they will lose their market. At the same time, teaching younger artists would widen the competitive gap. I’ve seen university lecturers try to sabotage their best students because of fear of competition.

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Shame on you. Really. SHAME on you!

Me: But there’s a crop trying to change this, is there not? Are we all doomed?

P:         There is. He refers to Waweru Gichuhi of Brush Tu and the collective. Shout out! /o/

Me: And yourself…

P:         Yeah. I try. I don’t feel the need to hoard knowledge. My studio is pretty much open to young artists. The thing is, a developed industry will increase the competition, there’s no doubt about that, but in the long haul, it will benefit us all! We’ll have a much louder voice.

Me: So then how do you stay relevant yet here you are enabling the competition?

P:         Well I work at re-inventing myself through the different media and style I use from time to time. (He tells me about an upcoming project he’d like to go into). I also try to travel and do a lot of public projects, some with the government, and I teach children when I get the chance.

Me: And clients?

P:         I try to always get new clients, and when resources allow, I travel and expose myself to different art/artists. Get new clients. It’s good to have repeat clients yes, but keep trying to broaden your client base.

Me: But how are we going to travel when we are ‘struggling artists’?

P:         I’m not asking you to fly to Denmark. It doesn’t have to be out of the country; The thing with exposing yourself is that you learn a great deal. You will see your art grow.

Me: What should we do differently then?

P:         The struggling artist would be a thing of the past if we treated art as an occupation like some countries do. Countries like South Africa, Egypt, Denmark; they have galleries that send out their representatives to scout talent even in colleges. They get the talent and pay the artists on retainer. Interestingly, they go for the unknown guys, the underdogs, not the already selling artists. Not like here where to get such a contract you have to be pushing sales already.

Me:                 miss jay

P:         YES! They have you sign a 3-5 year contract and for the duration of this contract, they provide you with a studio space, art supplies and a monthly salary and your work is to just create. Then every month they’ll require you to create a certain number of pieces that they will collect and sell.

Me: Ever see that happening here?

P:         I’m hopeful that we will get to invest in our industry and nurture it instead of looking only for profits.

Me: What do you wish you knew when you were studying art in college?

P:         How to expose myself. The reason we have so many young artists who come out of uni/college and struggle is because they have no idea how the industry works. They then quickly give up out of frustration and go white collar. What they don’t realize is that for your work to pick up, it will take 3-5 years before you start making solid returns from it. It isn’t easy. It’s just like any business. The first few years are tough so you’ve got to stick it through. Now just imagine how much easier it would be if you started taking part in workshops, exhibitions and the likes from your second year? By the time you’d be graduating, you’d be better off than most of your classmates and possibly have established a ready clientele.

Me: And do you think Universities are doing enough to teach their students the business of Art? Or are they also aiding in the churning out of clueless students?

P:         Universities do not teach the business side of art. We have lecturers who haven’t even held their own personal exhibitions in years! How would such a person know what to tell their students about the industry and advise them on where to sell? 

*let me hand you a cup of coffee as you take that in*

Sadly, they only teach the skill. Not how to make the money. Take a place like the US for instance, they have a mandatory policy for their art teaching staff to hold an exhibition every two years or get chucked! That’s the only way their staff can keep abreast with the industry and make any beneficial developments to it. Hellar!

Me: What about the government?

P:         Did you know there is an artist’s fund in the office of the Deputy President dedicated to cater for travel of artists to just go out and expose themselves to different art? A kind of way to foster their continuous education?

Wot? Everything in me wants to hit up my Deputy President and be like “Bro dude, where the money at?”

But I have a feeling guy Ruto is a little busy ry naw, because you know, sham elections aren’t easy to plan…

(P Continues)…It would be great also if we could get a museum dedicated solely to art like South Africa which recently launched their Zeitz MOCCA , located in Cape Town. It is the first public institution devoted solely to Contemporary African Art on the entire continent. The place is massive. (Check it out here https://www.youtube.com/watch?v=F2FNx60kuDc)

A museum of that sort if opened here would generate loads of income. Collectors would get to the showcase their collections and even charge a fee for people to view it. The beauty in that is that people would come from all walks of life to see work. Take a minute and think about the commotion you would cause if you opened your 13 original print Picasso works for public viewing? Secondly, money would be generated from the sales and the programs such an institution would run. Schools, both local and international, would easily come and learn the arts on a more informed level. It would be both a tourist attraction and cultural haven. Just because it was Kenyan wouldn’t only restrict the art in it to be Kenyan.

Parting question…

Me: What the hell is Contemporary African Art!!!?? Why everybody using this hashtag for? Is this a cool kid’s thing now?

P: *laughs* … you see…during Apartheid in South Africa, artists weren’t able to easily access art supplies. So they created art pieces with objects they could easily and readily find. The world started taking notice of this and its unconventionality and named it this.

I swear this explanation was longer but I may or may not have zoned…

Though….me here I read that Contemporary African Art is African art that speaks about the now, the present. . .but well…

It gets to about 4.30p.m and my little green notebook whispers to me to wrap it up! Mvua inakuja sis! And so I did.

******************

Morale of this story: We each have a part to play in reaching the goals we want to reach.

To Artists reading:

Kiss the box goodbye. Test the boundaries. Keep re-inventing yourself and pay it forward. Hoarding is selfish. Organize yourself. Travel and expose yourself. Always build networks. Create. Bask in your truth.

To the Buyers/potential Buyers reading:

The importance of local buyers cannot be overstated if future generations are to bank on art as a profession. Support the arts. Visit exhibitions. Buy artwork-We have more young people with higher income and more disposable income now (Weren’t we the country that made 900 millionaires in 2016 alone? Pesa has not otasss-ed). Invest and encourage.

 Remember…wish 

If you wish to move mountains tomorrow, you must start by lifting stones today

~ African proverb

Thanks for stopping by! Share it too yeah? Thanks! Want to send feedback? artlawkenya@gmail.com is it.

Links:

  1. https://www.africartmarket.today/report
  2. Photos courtesy of Google Images.
  3. https://www.youtube.com/watch?v=F2FNx60kuDc

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REGISTRATION OF ART COLLECTIVES; As a group or as a solo bird…

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There are very few things I consider enemies of progress… like people who do this to Ms. Mona, like matatu seats to new stockings (stuff just rips right through, no decent dinner first); like the part in the middle of a Congolese song when it sounds like it’s about to end but you’re really only being given time to remove your sweater; like private plane’s trying to crash and kill Morgan Freeman when the ‘Immortal’ in his name is silent. See? Few things.

Is the Ministry of Sports Culture and Arts one of them to me? Not particularly. Not at the moment anyway…who knows what I’ll find out tomorrow? I’m sure my learned friends in sports and film will have something different to say though.

The Ministry’s work is to develop, promote, preserve and disseminate Kenya’s cultural and arts heritage. They are ideally supposed to carry out this mandate through forming and implementing policies, programmes and projects. Admittedly, their track record, especially in sports (*badumm tsss*), hasn’t been the kinda report card you’d like to take home to momma.

A surface investigation on where Vision 2030 places the Arts in Kenya shows a grand project which has been planned for that will involve the establishment of an ‘International Centre for Arts and Culture’ geared towards the development of the youth potential and to nurture talent with a view of empowering them economically.  The said facility is to be ‘a centre of excellence to revitalize culture as a resource for sustainable development’. Unfortunately, the status of this project is ‘behind schedule’; makes you wonder how the Kshs 7-9 billion allocated to the Ministry annually by the Government’s National Budget is spent. Who holds these guys accountable anyway? The Executive? The Legislature? Us?

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Whether I’d be wrong in saying that the Arts Sector hasn’t actively engaged with the government, and vice versa, is anyone’s guess. A lot of complaints have taken centre stage and from the forum’s I’ve attended; the constant song sung is “we aren’t quite on the same team”…so you can imagine my reluctance when I got a client brief with instructions to register an Art Collective SPECIFICALLY with the Ministry.

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———–>>> Side bar——->Have you watched Zootopia? Part where main chiq (Officer ChidyHop) and the fox dude go to see ‘Flash’-the sloth, at that government office to get help finding a plate number? that scene?

Yah.

In response, I massively campaigned for the ‘incorporate-a-company’ and ‘form-a-partnership’ and register a ‘damn-business-name!’ agenda for a long hot second, cause hey, you can now easily do these things on e-citizen. Plus these entities are so much more legally autonomous (if they conduct legal business of course). Nobody will mind your business.The only big boys club you’d have to worry about is the Kenya Revenue Authority (KRA) because the tax man is complained about by only two classes of people: men and women.

But this client wasn’t too hot about these body corporates. So I took a walk…to the Ministry of Sports, Culture and Arts, just to see if luck lived there. To my pleasant surprise she did!

First, I must say, the people at these offices are friendly! If you know me, you know I’m a sucker for good manners and free smiles. And they had these; almost threw me off my game! I talked to a gentleman and a lady. I inquired about the registration of Art Groups/Collectives/proprietorships. and what sort of benefits this would have. The lady explained that registration would ensure that once in their database, the Ministry would be able to call on artists for various festivals it is invited to as well as give you opportunities to not only market yourself locally and internationally, but to better sell yourself and/or your art/crafts. The good thing about this registration is that you can do so as a group or as an individual.

All you need is:

  1. A name. They’ll perform a search and if the name hasn’t already been used, it’s all yours.
  2. A Constitution (if you are a group) setting out the rules and regulations governing the group – ask your lawyer to help you with this.
  3. Minutes of your first meeting (again if you are a group) in which you appointed your: Chairperson; Treasurer; and, Secretary and their respective photos
  4. To fill in the form you will be provided with.
  5. To pay a sum of Kshs 520/- and an annual renewal fee of Kshs 220/-; and,
  6. Prosper the hell up!

I’m told these kinda arrangements work well even for theatre groups, craft makers and event organizers.

I’m hoping to see for myself how this particular arrangement works. Hopefully, it will be mutually beneficial, economically and socially, to both quarters. It will be interesting to watch the two engage. The Ministry is after all participating in the 57th Venice Biennale; commissioning works by five contemporary artists forming the Kenyan Pavillion (who are Kenyan and not Chinese this time!), with the commissioner being Dr. Kiprop Lagat, the Director of Culture from the Ministry of Sports, Culture and Arts. That right there is a show of good will. (read more here http://www.biennialfoundation.org/2017/05/kenya-pavilion-57th-venice-biennale/). For now however, I’m working with rebuttable presumptions (legalese for ‘let’s wait and see’).

sips tea

Great week ahead!

ARTWORK LEASE AGREEMENTS; Leaving that right door open…

The worlds of the elders do not lock all the doors; they leave the right door open.

— Zambian proverb

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The right door in this proverb may easily translate to that which you consider your safety net; a safety net you have learnt to FAITHFULLY carry along with you after years and years of experiencing the same storms. They say experience teacheth. The thing about experiencing the same problem/circumstances more than once is that ideally, as man or woman, you are meant to learn from them and grow. Take for instance the Wright Brothers; it took a couple of attempts before they got that aircraft to stay airborne. Their right door? Gathering data from every foiled attempt to take flight.

I’m sure you’re sitting there staring at your nails and thinking…Relevance woman?

I’m getting to it!

See I’ve had the pleasure of attending a number of Art exhibitions this year. From Circle Art Gallery to Alliance Francias, Kuona Trust, Goethe Institute, BIEA, Polka Dot, Paa ya Paa, Kobo Trust; all of which were hosted by various artists——————*silently singing ‘Uliza my kiatu’*.

In these exhibitions, I’ve seen different kinds of art, different kinds of artists, different styles, all kindsa medium, some REALLY impressive! I mean have you seen this guy who uses pieces of Vinyl records to make compositions!? Sculptures from Naftal that look like they rolled straight out of God’s hands? Paintings that would make Rembrandt shook!? Oh if only they re-introduced the arts back into the Kenyan education curriculum…

Anyhu…

Some of these exhibitions sell out on their first night. Clean! Yaani you walk around and see red stickers on everything! P.s, it’s possible. I once read an article about Paul Onditi, a Kenyan-born artist, where he talked about his moving back to Kenya from Germany and being awed by the reception his work got here. You tell me, how YOU would feel if after barely making a living as an artist in Germany, for NINE years, you relocated back to the Motherland (Kenya) and had a friend randomly take 6 of your pieces to an Art Space in Nairobi (shout out to Kuona) and had ALL SIX bought. 1,2,3,4,5,6! No negotiations. As in?…can somebarry say ‘Welcome back’ gift? Chei.

Then there’s the other instance, the not so good one, where you hold an exhibition and 1 out of 10 pieces go. Or they don’t go at all. Usually, when these exhibitions come to an end the artist is directed to pick up their pieces.

I wonder…what do you as the artists do after? Do you store away these pieces? Take them back to your studio spaces and watch them gather dust in the hope that they will go when the Mayans realize when the world will really end?

Here’s a thought…how about you Lease them out?

*Ding!*

Leasing out your work basically translates to giving a client, whether residential or commercial, your work, for a period of time; at a price (let’s call it rent). Same way you pay rent to that mean landlord hollering at your window every month. Let’s say your work is priced at about Kshs 200,000/- and Guy X can’t afford it, but he would really like this piece in his building’s reception area. You could decide to lease it out to him for say, 6 months? At a rent of maybe Kshs 15,000/- a month? Again, whatever rate you agree on is entirely up to you, provided Guy X undertakes to return your piece in good condition.

These leases could run monthly or annually depending on what it is you agree with your client.

For any alleviation of doubt, your typical leasing agreement would contain:

  1. The date from which you enter into the Lease Agreement.
  2. The duration of this Lease.
  3. The Market Value/actual value of your work.
  4. A Payment Instalments clause governing how and when payments will be made.
  5. Copyright Clauses to safeguard your ownership of the work and deter image reproduction of your piece without your consent.
  6. A Repairs clause (should the work be damaged whilst in the possession of your client. You could bill them for this too).
  7. An ‘Option to Purchase’ Clause to allow the Client buy the work if they wish to.
  8. A Default and Termination Clause.

I’d put in an Insurance clause for, you know, more security, but our insurance companies…hmm…do they cover artwork? That’s a whole other topic on its own.

Check out a sample ArtWork Lease Agreement here http://www.spencertive.com/downloads/files/ARTWORK%20LEASE%20AGREEMENT.pdf

(Before you go copy-pasting it, please read through carefully, it must gel with our good ol’ laws).

This entire post was informed by various cases I’ve heard of where institutions, propose to take your work for free, to use in their premises, in the hope that one of their visitors might purchase your work. These institutions then take a cut from your earnings and call it ‘giving you exposure’; that having your work on their walls for free = exposure. The decent ones don’t ask for a cut.

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So I Googled the meaning of the word ‘exposure’, this mystical word they use on artists. Here’s what Google told me. Exposure means “the revelation of an identity or fact, especially one that is concealed or likely to arouse disapproval”. Unfortunately, I didn’t read anywhere where it says it can be used as currency. *side eye*

Go figure…

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Dear exposure givers, PLEASE hit us up when that shit can pay our rent. Dhangz.

Back to Lease Agreements…So what would be the benefits of this kind of arrangement?

Well,

For Your Clients…

  1. It won’t break their bank. Clients, especially commercial ones are all about making profits. And to make profits their capital base must remain intact for them to achieve the objectives of their businesses. Not having to worry about extra expenses will provide a softer landing on their finances if instead of giving you all the money at a go, they rented your art for a period of time.
  2. It helps the non-committal ones. A client may like your work, but they aren’t too sure how they’ll feel about it a year from now. You laugh but it’s true. You know how you have that phone app that you keep selecting the ‘Just Once’ option?

For the Artist…

  1. It would give you a steady revenue stream. Every month, or every so often, you’d have sure income being generated. Wouldn’t that be nice?
  2. A more ‘willing’ market. People may like your work, heck; they may very well sell their children for it. But if they can’t afford it, chances are, they won’t give your work a second glance. But here you are, making your work that more reachable to the market by allowing art lovers to have your work on a rental basis. Me I can count the number of works I would hoard in my home if I could afford some of these guys.

So next time you notice people getting sudden asthma attacks at your exhibition once they glance at the price of your work, or hear them singing Bob Marley emancipation songs as they count the zeros, walk up to them and suggest a Leasing arrangement. That could very well be you leaving that right door open.

You may read more here https://www.artsyshark.com/2014/06/12/leasing-artwork/

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And the mountain asked “Where Mohammed at?”

Mohammed: Bih…over hurr.

 

THE DEVIL IS IN THE DETAIL: QUIPLE PART 2.

My people my people…as you were there waiting for the fight between MayWeather and guy, I was busy Khaleesing on ‘Quiple, Part 1’ (refer to my previous post). Now that it’s over, I can talk about it!

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Let’s pick up from where we left off shall we?

‘Previously in Quiple’….

Que asked her readers on what they thought about the Copyright in Commissioned works, and the grey areas when you know, Person ‘A’ hits you up and asks you to produce yourself at ‘X’ location to do ‘Y’ work for whatever amount”

Most readers who wrote back said that contracts were work, and that most people in the creative sector, particularly artists, just want the money, no contracts. So by the time anybody raised the point of ‘commissioned works’, people went…

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Here you are, le artist, all ready and revved to go because the finish line has got Benjamins (read Uhurus) and/or more bragging rights to add to your Artist Portfolio. You sit down to figure out the nitty gritty of the contract bit, that is, if there is one. You read through… and it’s silent on copyright. You think…meh…no biggie. Si me I know I own it right?

Wrong…so SO bloody wrong.

Our Copyright laws say you own nada, nil, zero in that work…well UNLESS the agreement between you and your client EXPRESSLY divests the copyright in you. Best you can get is moral rights.  Section 31 of the Copyright Act talks about the ownership of copyright in commissioned works and vests the copyright in the person who commissioned the work subject to any agreement between the parties. If the commissioner is the government or an international body, forget it.

Here’s the thing, in the case of commissioned works, the Artist works as an independent contractor. ‘Independent contractor’ is a just a fancy word for ‘not my employee’, (read ‘not my problem’). That basically means that you as the Artist cannot front yourself as being an employee of the Client once they procure your creative services. You do not get to enjoy employee benefits. No sir. No ma’am. Neither can they expect you to perform any employee duties. You literally have one job, ONE JOB!…then your relationship is done. In these kinds of arrangements, most often than not, your work will be taken as the Client’s. The reasoning is this:

  1. They paid you for your labour, usually termed as ‘compensation’;
  2. They purchased all the materials you required on your behalf, and in some instances even paid your airfare (prosper brother!), your accommodation and whatever else you needed;
  3. They told you exactly what they wanted you to create…I tell you I want a singing topless bird with my ratchet logo…you give me just that. It’s my idea…I just needed you to execute it. It’s my creativity in essence, not yours. Be humble.

Story time!

A story is told of a certain artist who got called to participate in an Art project happening in some part of the country, more specifically a community based project. Have you smelt the NGO flair yet? The deal sounds good! The terms of engagement are as follows; you will work with them for about 7 days and at the end of it, you will have your money and a soothed conscious that you did some good in the world in your lifetime.

Mr. Artist here is a smart one. He wants to do his stuff professionally and so I’m here clapping like a damn seal because of this ‘business’ mindset of his. What does he do? He asks for a contract. They send him one. Because Mr. Artist knows a lawyer, he engages their legal services (PROFESSIONAL WIN #2!). His lawyer checks out the contract…it’s terrible. She is livid! I mean warrathese?

No! You say.

Let’s do a counter contract and get John Snow to resurrect again. (Please pay no mind to my GOT references; I’m still in the 0.000001% which still doesn’t know how or why Jon Snow’s death affected the price of Cocoa beans in Uganda).

She does a counter contract. In her counter, she changes almost everything and clearly outlines that the Artist will retain copyright and moral rights over the works created during the subsistence of this contract. She safeguards his interests. She sends the contract and guys on the other side say “YES! We agree!” Everyone is happy, we can all go home?

Not quite.

Mr. Artist is flown out to the location and finds that the contract isn’t signed………………. but he does the work anyway.

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Hush baby don’t you cry…

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He flies back and at this point, AT THIS POINT, the NGO decides they aren’t ‘comfortable’ with the contract and decide to include their amendments. Mayweather is called in.

As we McGregor through these amendments, you realize the wording has been changed! That one litu thing that changes the whole damn context of the contract! NGO now call this work a ‘commissioned work! Godamnit. So now Section 31 of the Copyright Act applies.

Here is the thing about contracts. Contracts are agreements you negotiate on. Each party to this contract wants something. And because you have something the other person wants, you have what is called ‘bargaining power’. I have milk, you have money. I want your milk (head outta the gutter) and you want my money. The moment, however, I give you what you want without getting what I want…I lose my bargaining power. I’m now at a disadvantaged position. So at the point where you have already performed the work when the contract hasn’t been signed, and then the other person decides to change stuff you thought you had agreed upon, you don’t have much bargaining power and you my friend, are being bullied, outright! Your redress in a situation such as this is now to call in the courts and go to battle and site ‘misrepresentation’ (that these people basically led you on with no intention to deliver on their promises)…OR, to settle. Going to court is an avenue that will take time. Mr. Artist isn’t having it. He is fed up, as he should be, so he decides he wants to just settle it and be done. He will take this as a learning point for his next jobs.

Lessons we can all learn:

  1. Do not lift a finger before you are sure that the terms of engagement between you and your client have been taken into consideration and discussed and agreed on. You’d rather have your terms rejected, or reject theirs, than continue blindly. What you decide is really up to you and your client. You want compensation? A scaffold? Ask for it! If they say yes, or no, continue negotiating from there until you both reach an agreement. If you don’t like the terms and these guys aren’t budging? Walk away. Unscrupulous individuals are more likely to go as far as swindling you and not paying you a dime.
  2. If you and your client agree that the work to be done falls under the definition of a ‘commissioned work’, you can:
  • Agree on retaining the copyright or,
  • Agree on relinquishing your copyright.

Other things you can make sure you take into consideration when doing commissioned works are discussed in detail here:

The commission agreement: Some points to remember

At the end of the day, agreements vary, depending upon the party commissioning the work and the type of work commissioned IF it is a commissioned work to begin with. Take care of yourself; no one can do it better than you can. And remember, the devil is in the details.

Have a less than average existence this week!

P.s did you hear? Man Governor has refused the harrasment of photographers in the City i.e Nairobi! In his tweet and I quote “Photographers are now free to document our great city“…sasa siiiii that legislation/policy should follow shortly Bwana Governor? Juu sijui venye tutaanza kuonyesha kanjo our twitter history as a defence …

P.p.s for those who wrote back, thank you for doing so!

Bless!

I’M IN A PICKLE PEOPLE!

Good Morning/Good Afternoon/Good Evening/Good night, depending on which part of the world you are reading this from (because my stats show me that I’ve got readers in Norway and Thailand *mega-huge wave *).

I need your brain and your insight. I promise it’ll only take a second of your time. Not.

Ready?

Great!

So I intend to write a number of articles on this blog about various agreements that artists, art collectives, galleries, body corporates and the general public encounter when engaging in the business of art. ‘Commissioning Agreements for Visual Artworks’ was one of them; but as fate would have it; I’m in a tentative pickle over one such agreement at this very moment. And so I thought, what better time to write about it like the present?

THE PROBLEM

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I have a client, he’s an artist (duh), more specifically a painter; and he creates works for all kinds of people; I’m talking companies, media houses, NGO’s, you name it. Our pickle here is the copyright in these works and who it ultimately belongs to. As his legal counsel, I’m aware of what the law says and the grey areas so I’m still figuring out whether or not to put on my boxing gloves, if I have any gloves at all!

Of course I’m still turning rocks, and putting in the research time. But because stuff like this isn’t resolved in a day, I’ll divide this solo drama into two parts i.e. Part 1 and Part 2. If Nigerian movies can do it, why can’t I…

In Part 1 of ‘QUIPLE: Que in a Pickle’ (please tell me you caught that) I shall rally in my troops. My trusted 140 readers!

You.

Yes, you reading my friend. Stop turning.

Okay, here goes…Kindly answer me this.

You the Artist…

What kinds of agreements do you enter into when you are, so to speak, ‘hired’ for a certain period of time to produce work for a person/corporate entity? In fact, I should have started by asking IF you DO get into any agreements in the first place. (I know a number of artists who prefer to roll out agreements with their clients purely by word of mouth. For them, it’s pretty clear cut; show me the money, I give you the work, and if a disagreement were to occur during or after the subsistence of this agreement…it’ll be shoved under ‘yaliyondelwe sipite’ and often times, the artist will suffer because they had nothing written down.

You the Art Collective/ Gallery/Body corporate…

Do you enter into agreements with your artists whenever you seek to have them create work for you or for a client you are outsourcing their work for? Do you document these agreements? And specifically for commissioned works and their incidental agreements, how do you work out the copyright bit? Does it get transferred to you or the client you outsourced the work for? Or does it remain with the artist? Or hey, do you just not even talk about it?

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I’m asking these questions because:

  1. It would be real great to get our pretty heads out of the clouds and see what REALLY happens on the ground. It would help us all gauge the actual progress of the developing art market in Kenya and compare it to more developed markets. I mean it may be pointless to write about ‘Commissioning Agreements for Visual Artworks’’ when in art circles here, they aren’t exactly a thing…
  2. The law can be an ass sometimes, depending on your interpretation of it. And sometimes, agreements aren’t always an oncoming train looking like a light at the end of our tunnel.

So, as I put my ear on the ground, and before I get to a final conclusion on this matter (which p.s. will be Part 2 to ‘Quiple’) I’d like to hear from you, what your thoughts are to the above questions. All feedback will be kept strictly confidential, unless of course you expressly waive this confidentiality. Write me anything man, just write….please?

Slide into artlawkenya@gmail.com and leave me some sunshine there.

I look forward to hearing from you like you wouldn’t believe 🙂

Have a beautiful existence this week. And yes, please keep our land in your prayers this week.

Love and light!

Bless.

COPYRIGHT COMPLEXITIES IN THE VISUAL ARTS IN KENYA.

 

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 “I have always found it interesting…that there are people who regard copyright infringement as a form of flattery.”

~Tom Lehrer

 

Sometime this year, I can’t exactly recall when, the visual art community was treated to an online battle (twitter calls them ‘tweefs’) between two very big names in art circles (I shan’t name them because…me…I watch).

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Like in all fights, we had two camps. Those ‘for’ and those ‘against’ these individual artists. The genesis of the issue was accusatory; one artist (let’s call him Artist ‘A’) alleged that the other artist (Artist ‘B’), was not only copying his work, but copying his style of painting and in the process making heap-loads of money from it in ‘an art community that should ideally support original works’. In supporting Artist A, one artist even called out Artist’s B’s clientele for accepting his work which in his view, were not original. Sting!

Before you wield swords, HOLLUP! I was merely an online spectator, looking at what both sides of the divide had to say. Becky sipping my lemonade. I chose to take no sides before first appreciating the facts. All about fair hearing aye?

I’m not sure how this stalemate ended, if it ever did end, but I discussed it in my own fora.

One friend was so incensed, so bloody incensed; you’d think the work was his! He kept yelling COPYRIGHT!!! Another sat his ass squarely on the fence and said for all we knew, both artists may have the same style of painting. In his view, nobody could really say for sure who produced the work first, sort of like a case of the chicken and the egg and what came first. What I found particularly interesting though was my third friend’s opinion. He said, as an artist, if he found a person copying his work, he would be ‘flattered’. I don’t know why but I have never really taken to this premise; to this way of thinking. It unsettles me to be honest. Even MORE fascinating is the number of my artist friends who thought the same and take it as a compliment whenever they come across a parody or replica of their work, I’m talking exact copying, EXACT! Down to the very last brush stroke. In their opinion, pursuing legal costs wasn’t worth it and they’d much rather sooth their egos for free.

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Go figure…

Admittedly, the creative industry hasn’t quite developed legally to heights capable of capturing copyright infringement in the visual arts. Your regular case-law on search on Kenya Law will yield zero results of copyright infringement in visual art. See when it comes to the Kenyan IP sphere, the more prosecuted intellectual property rights cases are patents and trademarks, for instance that landmark case between Weetabix and Manji Foods that saw Weetabix walk away like the Real OGs. Plus Copyright in this country is most largely associated with music and films.

That said, however, anybody monitoring the Kenyan art scene will testify of the progress our creative economy is experiencing. Don’t believe me? Check out the Article run in the Business Daily by Margaretta Wa Gacheru that baptized Nairobi has ‘The Mecca of Kenyan Public Art’ (published on March 12th 2015). In two-three years, we’ve had two art spaces emerge; more and more corporates are inviting art exhibitions into their spaces, while others are sourcing commissioned works to display in their buildings. The industry is coming of age, and with every developing industry, legal ramifications take centre stage especially when we factor in monetary considerations. It’s only a matter of time now.

So where does that leave copyright in visual art?

Quick crash course. By visual art here I mean: painters, sculptors, animators, printmakers, graphic designers, photographers.

Protection is accorded to you the creator.

Perhaps to put it into better perspective, we can use the case scenario I wrote of earlier, between Artist A and B.

Say these allegations were true (I’m not in any way saying they are because…’innocent till proven guilty’),..but…

If you were Artist A crying foul over another artist copying your work

You as a visual artist are awarded copyright the moment you create your work, the moment your shutter clicks on your camera, the moment you chisel away at that soapstone or create that installation or digital design, copyright is automatic. Content you create is yours. Comprende?

And if you can prove that your work has been plagiarized, you are very well within your right to raise hell and scream murder!

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If you were Artist B whose work was uncannily similar to another artists works…

If you did copy, if you intend to continue copying, be courteous enough to get consent and give the actual creator their credits. You’ll be surprised to learn that some artists are actually pretty cool about it. You may even go as far as to monetize your projected profits and as a sign of camaraderie offer some kind of payment.

If you didn’t, boss, defamation/libel is your portion.

Listen.

It is I.L.L.E.G.A.L to get someone else’s work and front it out as your own.

**********Here is where I duck from the stones that are going to be thrown shortly**********

To avoid any of these eventualities, let’s now briefly discuss how you can protect your copyright and why.

Q. What is the easiest way to copyright my work/image?

A. On your work, be it a painting, a photograph, a video game or animation; attach/affix your name and the copyright symbol next to it. Putting the year will help your audience know when you produced the work.

Sort of like this…

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For better protection you could:

  1. Get these registered with Kenya Copyright Board (KECOBO) at Kshs 1,000. The plus side of this is that you can register as many images as you want and the process is really easy. Heck you can even register an entire portfolio. This makes it so much easier to prove ownership if at all an infringement takes place. Trust me!
  2. Get Certificates of Authenticity for each of your pieces. (To learn more scroll down to a previous article)

Q.Why do I need to protect my copyright?

A. Your copyright will give you the following rights:

  1. to reproduce the work;
  2. to prepare derivative works based upon this work;
  3. to distribute copies of the work to the public by sae or other transfer of ownership, or by rental, lease, or lending;
  4. to display the work as and when you want; and
  5. to stop free loaders from reaping where they did not sow. Please don’t be crying wolf if you don’t.

Q. What best business practices can I incorporate in the mode in which I deal in my art?

  1. Pay close attention to the language of the contracts you sign in the ordinary course of your respective creative venture (if there are no contracts, insist on one). Most contracts sneak in copyright surrender clauses. You may negotiate to have these deleted or kept depending on whether or not you want to retain your copyright.
  2. Incorporate confidentiality agreements or non-disclosure agreements. These would help where you want to embark on an extensive project in which you will require a number of people to enable the project come to fruition. For example if, if I was a video game developer, or an animator, whether I like it or not, I’ll have to at some point interact with a musician, an editor, a videographer and/or a coder to help me develop the project. Since you want to protect this idea, it would be wise to have each of these individuals sign a confidentiality agreement so that should any one of them try to swipe your idea, you’d have concrete proof to prove their breach….and scream murder.

This will really help you especially where you intend to produce merchandise from this project. Take ‘The Simpsons’ for example. You have the series, then you have the movie and from this you have all kinds of merchandise that only the owner of the copyright can exclusively manufacture and sell. Closer home we have the popular ‘Faiba’ Ad. Depending on the terms of engagement with the digital creator, whoever owns the copyright will have the exclusive right to make bags, t-shirts and even a movie from it if they wanted to. The law protects you. (I’d however advise you to go after a patent or trademark if you develop a game)

  1. Develop healthy business relationships. If a painter in France wants to paint a photograph you took, and has the decency to reach out to you to ask for consent (because in this ideal world of mine pigs fly), engage them! Learn from each other and come to an understanding. It could end up being a sort of two-way exchange program. Secondly, don’t be over-restrictive in fairly pricing your work online

Q What options are available to me if I come across someone using my work? You could:

  1. Do nothing.
  2. Ask for credits.
  3. Get into an image/content reproducing agreement/license with the person.
  4. Write them a cease and desist letter.
  5. Have your lawyer write them a cease and desist letter.
  6. Go to court and take em down (esp. if you can identify and trace them)! No matter who they are!

Me thinks that as digital content continues to become readily available, it isn’t hard to find stuff on google image search. It really isn’t. Queue the recently launched Google Arts and Culture domain and artistic works the world over can be traced if you were to look hard enough.

The only REAL barrier to all this, however, is that it isn’t easy to control the digital space and enforce copyright as easily. But if you can make peace with your image being reproduced, by all means, photograph the s**t out of it and post it up for all and sundry to see. If you aren’t, devise a way to control circulation of your images. Makes you understand why gallery exhibitions seldom allow guests to take pictures of works displayed doesn’t it?

Have a great rest of your week!

Yours,

Que

DISTURBING THE PEACE! YOUR WEAPON? YOUR CAMERA.

 

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Nairobi is a beautiful city, in’nit?

I mean if you look past the constantly angry matatu drivers (and their even angrier conductors), and almost losing your life and/or phone once in a while crossing the road at Koja; if you look past a couple (read a lot of things), this city is pretty alright! (P.s August 8th is right round the corner, let’s make Nairobi great again! Tukutane kwa debe #covfefe).

I digress

However, one not so good thing about this city (I refuse to call it a ‘county’) is our ever so loving City Council askaris, or as we so fondly like to call them, ‘kanjo’ and their cousins in blue uniform.

More so, if your craft is photography.

Now again, the stories I write on this blog are true; all the way from my ignorance, to my enlightenment.

So apparently, if you own a camera, or a smart phone, you cannot just one day decide to get inspired and walk into Nairobi and take photos…Before you comment, read on.

I have a certain friend, he likes to take pictures, randomly, because well, you can’t exactly anticipate when that shot of inspiration will smack you. If you were walking about town with him, i.e. le friend, this ninja will literally stop mid-convo and wander off pointing his camera phone at whatever. Granted, I found it odd at first, but creatives aren’t the lot conversant with societal norm or rules, so you must let them prosper, and I did.

                  *********************  Fast forward to THE day **********************

It’s an unusually beautiful day in the City. I’m talking blossoming flowers and the sun out with her extended family, so light angles are all lit! Le friend gets out his camera and starts taking shots.

Then out of nowhere…

Man in blue: KICHANA!! HEBU SIMAMA!!!

THE END

His crime? Taking pictures without a valid permit for ‘unknown reasons’ hence him being suspected of being involved in…wait for it…terror activities.

What?

He got let off eventually, because he ‘wiggled’ himself out the ‘Kenyan’ way, but for the life of me, I wasn’t conversant with any laws that prohibited public photography, especially not since our 2010 Constitution that has all the rosy clauses on protection of artistic expression!

When we met next, he asked me what crime he had committed.

Me:      I’ll have to find out, perhaps it’s because you took the pics close to a police station?

Inner Me:

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 Inner Most Me:

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     ***************************

But say he didn’t manage to ‘funga’ those cops ‘macho’?

What if that day, these cops were feeling sufficiently ethical in their practice? What if on this fateful day, IPOA (Independent Police Oversight Authority) or EACC (Ethics and Anti-Corruption Commission) had sent down a supervisor or investigator to monitor the conduct of the cops at this particular station? I can bet you my 1kg Pembe Maize meal that he would have been taken through the normal process of being charged with an offence/misdemeanour just like any other suspected criminal. And I like to think (because self-confidence is key in this life), that if it got to that extent, that I would be his one call made from jail, that he would call his lawyer (read lawyer friend).

What would I have done had he called me down to the station? Would I have shown up all fabulous and clueless and waved the Constitution in the officer’s face? (We do that a lot though *grin*). (Kusema tu ukweli, every practising lawyer knows the rule of thumb in this profession, that is: never admit you don’t know. EVER! Die if you must. In fact be the best at not knowing what you don’t know! Sell that BS well enough, and your people will buy it.)

But that’s just it. I had no BS to sell on this!!

Because of this, I did my research.

In doing my research, I came across an online blogger whose online name is Canduh. She is also a low-key photographer. In an article/blog post she wrote titled ‘Police harassment of photographers taking pictures in Nairobi needs to stop’, she narrated her similar ordeal at the hands of the police/kanjo. Miss Canduh commented:

‘Our case is not unique. Several photographers are harassed on a daily by City County askaris and cops for simply wanting to showcase the streets of Nairobi to the world. Friends have had their cameras confiscated and have had to part with hefty bribes to get them back. More still have been roughed up for doing the “evil crime” of simply taking pictures. My question is, why can’t photographers practice their art in peace? Why must the law in this country trample upon genuinely hardworking individuals trying to chase their dreams and earn an honest living? For some of us who take to photography as a hobby or as a means of escape from our hectic lives; the case is not any different. Instead of fighting real criminals out there; the police and other law enforcers are busy arresting people for petty to non-existent crimes. The camera is neither a bomb nor a gun that is out to harm anyone! I have never seen a camera kill someone nor rob someone of their possessions.’

You can read more at canduh.wordpress.com

One guy in commenting on her post said:

‘Last December, we were accosted by three policemen in uniform and AK47s at Central park for having a camera without license. We parted with 600 as KK*, instead of a walk to central police station and staying there until the courts open after the holidays’

**********

We clearly have a problem. On one hand, we have an uninformed public, on the other, we have bullies fronting themselves as ‘Utumishi-ing kwa wote’. The two together do not work. And for you, the photographer, professional or low-key, to steer clear of any such trouble, you need to know the mundane legal side to this.

The Kenyan Penal Code captures photography within its definition of ‘print’. In it, it terms ‘print’ as: producing or reproducing words or pictures in visible form by printing, writing, typewriting, duplicating, cyclostyling, lithography, photography or any other means of representing the same in visible form. Making or reproducing prints in a manner likely to cause harm to the public, may constitute a wide range of crimes, including treason!

Another piece of legislation that puts barriers on photographers’ freedoms is The Official Secrets Act. It categorically criminalizes acts prejudicial to the Republic i.e. acts likely to again, cause harm to the public. Section 3 (2) states:

 Any person who takes a photograph of a prohibited place or who takes a photograph in a prohibited place, without having first obtained the authority of the officer in charge of the prohibited place, shall be guilty of an offence.’

By “prohibited place” it means:

 ‘any place belonging to or occupied or used by or on behalf of the Government which is used for or in connexion with the maintenance of public security, including arsenals, establishments or stations of the armed forces or the police, factories, dockyards, mines, minefields, camps, ships, aircraft, telegraph, telephone, wireless or signal stations or offices, and places used for the purpose of building, repairing, making or storing any munitions of war or any plans or documents relating thereto, or for the purposes of getting any metals, oil or minerals for use in time of war or emergency.

 

Here is where you take a mental note NOT to snap pictures in or around these areas without the requisite permissions! Usipatikane DOD trying to take selfies either.

The penalties under these Acts range from as low as 6 months to as high as 14 years!.

I then made a call to a guy I know at CID, just to eliminate any blurred lines, because well…due diligence.

                       Me: Why would your guys shika anybody taking pics even at Uhuru Park?

                     Him: *laughs* Hao watu wako walikuwa wanakamuliwa tu!!(Those   people of yours were just being milked!) Uhuru Park?? Si even tourists take pictures there? Tell your guys to understand their rights!

                         Eh.

Truthfully, we can only hope for reprieve in the form of an amendment/better implementation of the current legislation in place. You have places like the US with better established laws on public photography (reference to the Digital Millennium Copyright Act) that not only protect photographers but encourage them to further their mode of creative expression. However until then, if you love your life, and I hope you do, if it all you want to take pictures in the CBD and not get into trouble for it, you are WELL ADVISED to:

  1. STEER CLEAR OF PROHIBITED AREAS!! You can’t take pictures from jail.
  2. Depending on the kind of shots you would like to capture, especially for professional purposes, take a walk down to Central Police Station and speak to an officer who will aptly direct you on what kinds of clearances you will require. Some of the clearances/permits you will need will be from: the Department of Filming Services and/or City Hall Annex. Please note that you may be charged a fee for some of these permits.

(visit ‘Clicking With a Purpose’ to learn more http://mwarv.click.co.ke/2016/11/17/what-it-takes-to-shoot-on-the-streets-of-nairobi/)

It’s a daunting process admittedly, but the law is the law. Unless of course, we move to have it changed? I know of the Photographers Association of Kenya (PAK). I haven’t interacted much with PAK, so correct me if I’m wrong, but it is my honest unbiased belief that the prerogative of such professional associations’ is to champion the rights of its members? Perhaps if you belong to PAK or are a member, then you could raise these concerns at your member’s meetings and launch constructive discourse on the topic. Have the association sensitize the photographers’ community, and perhaps go as far as sponsoring a bill to Parliament to amend/better craft the current legislation?  Pave a less narrow road for the next generation of photographers? *Dreaming is free :D*

I’d say this to close though; if you are a photographer, and you encounter a client who wishes to have their photos taken anywhere within the CBD, then factor in the license/permit fees in their invoice. Alternatively, you could have them get the licenses themselves before you proceed to engage your services.

Now that you know what to look out for, keep yourself informed. Stay woke.

Have a great rest of your week!

P.s shout out to you for reading this :*