[IRTalk] FW: SA’s photographic history could be lost to future generations--Re: Vusi Mahlesela appeals for past Copyright refunds to SA Artists, many whom are Poor

[Dr Leti Kleyn]

SA’s photographic history could be lost to future generations
Photographers need government's assistance when it comes to copyright laws
19 October 2018 - 05:07 Struan Douglas
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Picture: ISTOCK

SA has a rich photographic history stored in books, films, archives and art galleries. However, most important photograph negatives are privately held and waiting to be discovered like those published in Basil Breakey’s Beyond the Blues, or Ian Bruce Huntley’s Keeping Time.

A photographic heritage resource is the missing link. A building with a digital facility that holds, preserves and provides access to copyrighted works of historical interest could help define the future of photographers. It could also preserve work that risks being lost or taken abroad.

A well-functioning archive is the Hugh Tracey International Library of African Music in Grahamstown. A complete digital copy of its collection is backed up in the Mountain Archives of Norway.

The Legal Deposit Act enforced by the Department of Arts and Culture could be used to create functional archives that are maintained for future generations. The department does good work in archiving printed news publications, government documents and books.
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Several  SA photographers gathered recently at the closing of the month-long Jazz Expressions exhibition, hosted by photographer Siphiwe Mhlambi. It featured several discussions with photographers and the last one, on copyright and photography, was moderated by cultural curator Rashid Lombard.

As co-founder of the Cape Town International Jazz Festival, Lombard created a platform for a legacy of jazz photography. The festival has published several hard-cover photographic volumes and has an annual photographic exhibition, DuoTone Gallery, and a five-day workshop. The late Peter Mckenzie was a tutor at the workshop for many years.

“Our professional standards require ongoing refinement and alignment, especially in our understanding of rights and the value of our work,” Lombard says.

The debate of “fair use” versus “exploitation of works” was pushed into the spotlight recently when American Hank Willis Thomas adapted archival photographs by South African photographers Graeme Williams, Peter Magubane and others.

Was the adaptation produced in SA, it would have infringed copyright legislation. In the US, fair use law is enshrined in the US Copyright Act of 1976. It is tested by four factors: the purpose and character of the use; the nature of the copyrighted work; the portion used in relation to the copyrighted work as a whole; and the value of the copyrighted work.

Historically, US  copyright law is regarded as the most liberal, European law more “left” and British in the centre. Moral rights are a cornerstone of the civil law copyright regime and were signed into law in Switzerland in 1889 at the Berne Convention for the Protection of of Literary and Artistic Works.

The US did not join the Berne convention until 1989, and when it did it had to recognise moral rights. In 1990, the US passed the Visual Artists Rights Act which gives “visual artists the right to claim authorship in their work and to prevent the use of their name in association with a work. In addition, artists are granted the right to prevent the intentional distortion, mutilation or other objectionable modification of their works.”

SA's copyright law identifies three primary rights holders for any photograph: the photographer (composer), the commissioner and the subject.

There is often tension between photographers and their subjects. Lombard described a court case involving musician Rod Stewart, who had used a photograph given to him 20 years early as the audio visual backdrop to his most recent tour. The owner of the photograph is suing and the case is not yet settled.

The Jazz Expressions exhibition featured 90 black-and-white jazz portraits of mainly local musicians performing at events, particularly the Joy of Jazz Festival. The large framed images were on sale for between R8 and R30,000, depending on the fame of the musician pictured.

Mhlambi, who was mentored by Mike Mzileni while working at City Press, explains that the subjects of his photographs do not receive proceeds from the sales of his images, but are free to use them at their discretion, particularly for publicity.  “The fundamental part is passion. It is work, it is money, it is time invested,” he says.

Photographer Oscar Gutierrez says his photos were given to  pianist Andile Yenana to use for his publicity. However,  posters were printed without crediting Gutierrez and they had to be taken down.

Increasing access to the internet and social media has made high-quality images very accessible to anyone with a cellphone. While this has given a voice to many more people than before, it has threatened photography as a profession.

“Photography was once the hobby of the rich. Digital has made it more accessible. There are millions of images taken every single day. Roald Dahl, who was a war photographer, said it is the art of the talentless,” says professional photographer Rafs Mayet.

The advent of user-generated content in the digital world has made copyright highly relevant. “We all live in a click, copy and paste world. There is no marginal cost with a click and no marginal value in paste,” says Lombard.

There is no legislation protecting SA content in the digital environment. The regulation of online contracts could change this and give photographers a share in any online revenue made from their work.

Settling copyright claims for photographers has been complicated by the Copyright Amendment Bill’s recommendation of the establishment of a copyright tribunal.

“Historically this has not worked. Internationally, the small claims court is used successfully because cases can be quickly convened, heard and implemented,” says copyright lawyer Graeme Gilfillan.

On Wed, Sep 12, 2018 at 3:23 PM Ashraf Patel <baobabknowledge at gmail.com<mailto:baobabknowledge at gmail.com>> wrote:
We all need to listen to the pleas of the music industry in our country

By Vusi Mahlasela• 12 September 2018
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Vusi Mahlasela performs after being awarded an honorary doctorate at the University of KwaZulu-Natal on Wednesday, 12 September, 2018. Photo: courtesy of the University Less
1 Reaction

An honorary doctorate was conferred on Vusi Mahlasela by the University of KwaZulu-Natal on Wednesday. He was recognised for his outstanding contribution to the betterment of South African society and to the global music industry. This is an edited version of Mahlasela's acceptance speech.

“If music be the food of love, play on,” says Orsino to Curio in William Shakespeare’s play, Twelfth Night. Indeed, music is the food of love. Music excites the body. Music nourishes the soul. Music expands the brain. Music heals the sick. Music breeds and keeps together families, friends and communities. Music buries the dead. Music brings hope, peace and reconciliation in times of wars. Music does all of these things, and more, in conditions of peace, tranquillity and plenty.

But, is music capable of doing these in our country, South Africa, which is considered the most unequal society in the world? How is it possible for music to do all these if artists themselves die of hunger from exploitation – only to be remembered and celebrated by those who supposed to care for them, government in particular, when they are dead and given glowing obituaries plus, if fortunate, Special State Funerals? How are music lovers supposed to buy the music when they are unemployed? How do those who are fortunate to buy music contribute to the welfare of musicians when they purchase counterfeits in the streets.

Where is the law enforcement in this regard? I am certain that I am not the first to pose these difficult questions. They have been asked many times before, and I suspect the inquiry will continue well into the future. But is anyone listening? Or perhaps should I say; who is supposed to listen? The answer is simply ALL OF US as a nation.

Recently, the South African Broadcasting Corporation (the SABC) announced back payment of needle-time play of music on its channels to 2014. This initiative is welcomed, even though it raises further questions like: is it not too late for the galaxy of musicians who were exploited throughout their careers and died before the cut-off period to enjoy the fruits of their craft? Why the cut-off date in the first instance? What informs it? What’s going to happen to the royalties of the period before this? How much are musicians likely to make since the broadcaster, and all other media outlets in the country, are obsessed with playing overseas music? Just switch on the television set or radio today and you will think you are in America or Europe. Whereas we recognise that we are part of a global society of nations, we must also be proud of our own local arts productions.

Controversies aside, the local music fraternity temporarily tasted a bit of Africa’s musical cake with the 90% local content playing quota. Now we are back to western cultural imposition which indoctrinates the nation to doubt or despise itself. To its credit, though, the SABC has called for public submissions on its editorial policy review. Do we as musicians, music lovers, and the academia – particularly music-based faculties or department – take time to make submissions in this regard to turn things around?

Similarly, what is the take of the White Paper on Arts, Culture and Heritage, as the national cultural policy, on this matter and many others relevant to the livelihood of musicians? Frankly, to say the least, South Africa’s cultural policy is an idealistic one size fits all for the arts. Yet for some considerable time, several African countries regarded music as the preferred cultural policy transmitter for the following reasons as stated by the scholars Lebogang Nawa and Ndwamato Mugovhani in the article, Music as implicit cultural policy instrument in South Africa:A case study of musicians Sello Galane, Rudzani Colbert Mukwevho and Khakhathi Tshisikule” (2017: page 82).

The choice of music as cultural policy leitmotif was not arbitrary. It was not done simply because it is music. The election was influenced by the respect and stature musicians enjoyed in the society as well as the fact that -from a technical perspective – music is a courier or source of other artistic genres in that it inspires, shapes and broadcasts their formations and implementations. Furthermore, music’s reach is wide, its transmission quick and economic incentives viable; it is also entertaining as it is also educational, especially for the youth who are lazy to spend time on other artistic genres like literature, drama and the fine arts. The insight above indeed proves that Shakespeare was correct when he wrote: “If music be the food of love, play on.”

Musicians can only cook, dish and enjoy this food themselves together with those for whom they create it in the first instance if given genuine opportunities when those who have the means can – to use the pun – put their monies where their mouths are. On this note, I call upon all South Africans in the form of citizens, government, academia and business to invest in and support the arts in sustained, tangible and substantive manner. DM


On Fri, Jul 13, 2018 at 5:43 PM, Denise Nicholson <Denise.Nicholson at wits.ac.za<mailto:Denise.Nicholson at wits.ac.za>> wrote:
FYI - See:  http://www.ip-watch.org/2018/07/13/deadline-next-week-comments-new-clauses-south-african-copyright-amendment-bill/http://www.ip-watch.org/2018/07/13/deadline-next-week-comments-new-clauses-south-african-copyright-amendment-bill/

Deadline for submissions on specific clauses - 18 JULY 2018.

Regards
Denise



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