Copy­right dispute over in­mates’ art

Cor­rec­tional Ser­vices con­fis­cated 11 pieces up for auc­tion

Cape Argus - - Front Page - Ed­win Lom­bard

AFURORE erupted in­volv­ing in­mates from Drak­en­stein Prison in Paarl, a well known artist, a fa­mous auc­tion house and the Depart­ment of Cor­rec­tional Ser­vices. This after the depart­ment removed art­works of prison­ers that were to be auc­tioned off over a copy­right dispute.

Prison of­fi­cials removed the art­works that were part of a larger auc­tion by Stephan Welz and Co that was held in Con­stan­tia.

Eleven of the art­works were do­nated to the Cape Or­chid So­ci­ety by the prison­ers.

Cape Or­chid So­ci­ety show chair­per­son Bev Schram said the 11 art­works were given to them, as part of their ju­bilee legacy project to raise funds to re­pop­u­late the West­ern Cape with the nearly ex­tinct Disa or­chid species.

“The in­cred­i­ble work came from the prison­ers. There has been such a stir and so much in­ter­est in the art. Some­body from the prison came and said the work be­longs to Cor­rec­tional Ser­vices… that it ef­fec­tively be­longs to the gov­ern­ment. We were com­pletely taken aback.”

Cu­ra­tor of the art­works Ca­rina Du­randt said there were 22 art pieces of which 11 were do­nated to the Cape Or­chid So­ci­ety and had gone on auc­tion, and the rest would have been sold and the pro­ceeds given to the prison­ers.

She said a prison war­den at first came

to de­liver the art­works, but soon after they re­ceived e-mails say­ing the works were not to be sold.

“They said the art­works be­long to the state. Seemed like it came from the top, some com­mis­sioner or some­thing. It is as if they don’t want to give these guys (prison­ers) a chance. They ar­rived at Stephan Welz and said they came to col­lect the works, and that it is no longer avail­able for auc­tion.”

Du­randt said the 11 art­works would have fetched R25 000 and only be­cause the artists were still un­known. “From my dis­cus­sion with them (Cor­rec­tional Ser­vices) they don’t know what to do with the money, be­cause the prison­ers can’t get the money.”

Du­randt said she still has money from pre­vi­ous art­works of the prison­ers she had sold, but the prison was still to pro­vide her with a bank ac­count in which to de­posit the money.

Stephan Welz and Co’s man­ag­ing di­rec­tor, An­ton Welz, said: “All I can com­ment on is that the is­sue of own­er­ship is be­tween Cor­rec­tional Ser­vices and the Or­chid So­ci­ety.”

Renowned artist Marieke Kruger, who teaches art to prison­ers at Drak­en­stein Prison and who has been in­stru­men­tal in or­gan­is­ing that the art­works be put up for auc­tion, said Cor­rec­tional Ser­vices said they were in­ves­ti­gat­ing the is­sue of own­er­ship and what to do with the pro­ceeds of art­works sold.

Cor­rec­tional Ser­vices spokesper­son Singabakho Nx­u­malo said the depart­ment was aware of in­mates re­ceiv­ing train­ing in art from an ex­ter­nal pro­fes­sional in Drak­en­stein. They pro­duce works which at times are used to show­case tal­ent be­hind bars.

How­ever, this art­work is not for sale or can­not be do­nated ex­ter­nally as the depart­ment is fi­nal­is­ing a pol­icy on such mat­ters.

Cobus Jooste, a lec­turer in copy­right law at Stel­len­bosch Univer­sity, said by de­fault the owner of copy­right is the au­thor of the work, un­less the pris­oner was in the em­ploy of the depart­ment. “In the case of prison­ers, the per­son who re­duced the work to ma­te­rial form (the writer or artist) is thus still the owner of copy­right.

“How­ever, if the work is made un­der a con­tract of em­ploy­ment the em­ployer will be the owner (of cer­tain works).

“Ac­cord­ing to the Cor­rec­tional Ser­vices Act, read with the 2012 reg­u­la­tions and amend­ment, the depart­ment has the right to sell any prod­uct of the work or ser­vice of prison­ers.

“Thus, where the pris­oner is em­ployed (in the labour law sense of the word) by the depart­ment, he/she is not the copy­right owner (but re­mains the holder of moral rights in the work). This may ap­ply in some cases.

“With­out any other ex­press pro­vi­sion to the con­trary, there is no pro­vi­sion that pre­vents a pris­oner from hold­ing copy­right in his/her work and it does not be­long to the depart­ment (un­less the pris­oner was em­ployed).

“Work by prison­ers, as part of the re­mand con­di­tions, do not amount to em­ploy­ment.” – Ad­di­tional re­port­ing Naledi Mo­hono



ART­WORKS: These are some of the art­works from prison­ers at Drak­en­stein Prison that were ex­hib­ited at the Stephan Welz & Co auc­tion in Con­stan­tia.

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