Prison Creations: Whose art is it anyway?
Cape Town - A furore 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 at 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