In Summary
  • While local artists live in poverty, their works are sold for millions of dollars abroad.
  • Before the signing of this bill, Kenyan artists would only get a one-off payment during the primary sale.

  • The copyright for artwork remains with artists or their estates for the remainder of their lives and 50 years after their deaths

Brush Wanyu, one of the pioneering visual artists in Kenya, is still smarting from a deal he entered into with an American art collector in 2001. The collector, who Brush says used to work at the defunct Gallery Watatu, was to market his art in the US. “In total, I gave her 100 of my pieces,” says Brush. “She gave me $500 (Sh50,000) as the initial deposit; I haven’t received a penny more since then.”

FETCHING MILLIONS

Seeing as he did not get much out of the deal, Brush has, through email, been pleading with the woman to return his pieces, to no avail. The other day, he got the shock of his life when a friend returned from the US and informed him that two of his artworks were on exhibition at a New York gallery and the asking price was $20,000 (about Sh2 million) per piece.

From the look of things, it is highly unlikely that Brush will receive anything if any of those pieces are sold. It is ironical that while his art pieces are fetching millions of shillings on the overseas market, the 72-year-old artist is sickly and has barely enough to get by. He suffers from arthritis.

Brush is being hosted by his friend Wakanyote Njuguna in Banana Hill. “Wakanyote asked me to move to his place after thieves broke into my place a few months ago,” said Brush by phone.

His entire art collection, plus a few household items, were stolen in the robbery. Following investigations, about 60 of his artworks were recovered in his neighbour’s house. “He had already sold a few of my pieces,” added Brush.

Despite the despondency he finds himself in, Brush has something to look forward to after President Uhuru Kenyatta signed into law a bill that empowers Kenyan visual artists to earn royalties following subsequent resale of their works, both locally and abroad.

50 TIMES MORE

Before the signing of this bill, Kenyan artists would only get a one-off payment during the primary sale. “We have no control over subsequent sales,” says Michael Soi, a visual artist based at the Kuona Art Centre. “This is bound to change with the signing of this bill; local artists will now be able to benefit from their creations for as long as their pieces keep getting sold.”

In spite of the good news, not many in the local art community are aware of the new development. Brush and other local artists do not know how to make the necessary follow-ups.

“Some of us do not even have records of people who buy our art,” he says. “Our new challenge will be knowing where our art pieces are being sold, either here or abroad.”

Not so for the tech-savvy Soi: “Through the internet and social media, I’m able to keep track of galleries around the world where my art is being auctioned,” says the widely travelled Soi. “There are instances where collectors buy your art at an agreed fee only for you to later learn that they sold it at 50 times what you gave them for.”

Michael Musyoka, an artist with Brush Tu Studios, is happy that, like musicians, visual artists will now be assured of getting royalties irrespective of how many times their works are resold. “It gets heartbreaking for an artist to learn that their works are being resold for millions of dollars out there, while they get nothing in return,” says Musyoka.

30 COUNTRIES

Edward Sigei, the executive director of the Kenya Copyright Board (Kecobo), told the Saturday Nation that for Kenyan visual artists to enjoy the fruits of their labour, they will first have to form a Collective Management Organisation (CMO) that will manage the collection and distribution of their resale royalty rights.

Kecobo came up with this bill because it is in keeping with international trends and after realising that Kenyan artists have been getting the short end of the stick. “With this new signing, Kenya has now joined the league of about 30 countries globally, where artists’ resale rights are taken care of,” said Sigei.

“Once the artists form the CMO, the government will advise and facilitate when it comes to the enforcement of the law,” said Sigei.

The copyright for artwork, he said, remains with artists or their estates for the remainder of their lives and 50 years after their deaths. “After those 50 years, copyright shifts to the public domain.

Lydia Galavu, the curator of the Creativity Art Gallery at the National Museums of Kenya, is glad that the President has signed the bill.

ANNUAL AUCTION

“This is a conversation we have been having with stakeholders for a long time now,” she said. “As one of the government agencies that interacts with artists, we will take part in creating awareness to the artists and give advice, where necessary, on the formation of the CMO.”

Locally, the Circle Art Gallery has been inviting international art collectors to an annual auction where they bid for a selection of Kenyan art. Millions are transacted during these auctions.

While the art sold is local, there have been complaints from Kenyan artists that only a few of them benefit from the auction as most of the artworks being offered at the auction come from collectors.

“You will find a piece from artist X going for millions of shillings only to realise that it had been brought to the auction by a collector who had bought it from the said artist. That artist gets nothing,” said an industry player, who didn’t wish to be named so as to talk freely on the issue.

Arvind Vohora, a director at the Circle Art Agency, said they are studying the new law. “Once it comes into full effect, we will be happy to make the necessary adjustments so that artists get their fair share in case of a resale,” said Vohora.

OTHER MARKETS

Andrew Ngurumi, an intellectual property and art lawyer, says visual artists whose copyright has not expired can now receive additional income from commercial resale of artworks both locally and internationally.

“Locally, in the famed Circle Art Auction, we expect to see changes as visual artists whose works are resold should be able to receive royalties,” said Ngurumi.

One of the downsides of this new law, explains Ngurumi, is that participants in the art market, such as galleries and collectors, may respond to this by shifting to countries that do not have artists resale rights.

“This may then lead to dwindling of the art market to the artists’ disadvantage,” he says. “The shift to other markets, however, does not always happen since the additional costs (to cater for resale rights) are low in comparison to putting up new business elsewhere.”

William Ndwiga, the curator of the Little Art Gallery in Nairobi, for his part, says the new law positions visual art as an investment option in the minds of visual art players and other stakeholders. “It also calls for more regulatory policies and for institutions that manage the industry to put their houses in order,” he adds.