A CURIOUS CASE OF ALTERATION

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Yinka Olatunbosun reports on an alleged case of alteration of a painting belonging to an artist based in Republic of Benin, Amadou Imorou Sanda by a famous Lagos art gallery owner

Two months ago, at about 10 p.m, this reporter received a disturbing call from an artist who introduced himself as Imorou Sanda. A meeting was promptly scheduled for the next day at the National Theatre premises where a few journalists were gathered. Clad in a simple well-worn t-shirt, Sanda received the press men who were waiting for him under the lush trees popularly called “Abe Igi’’. One of his works which had been, reportedly, tampered with and his story seemed interesting.

According to Sanda, he had been selling his works to a Lebanese art connoisseur, Chief Rahman Akar, the CEO, Signature Abound along Awolowo Road, Ikoyi. It has been a relationship based on trust. He claimed that he usually gave some of his works to the gallery owner who would sell and pay him much later. He had no reason to look for any other gallery to showcase his works since Akar had been on top of his game and is well known in the visual art circle in Nigeria. Lots of collectors as well as artists have visited his gallery.

Sanda was quite shocked when a friend drew his attention to an art auction catalogue published in March, 2016 where one of his works has been featured. The work was reportedly sold to Chief Akar and the artist claimed that the gallery owner had not completed the payment as at the time the work was published. It was also done without his permission.

As though that wasn’t enough, the work was almost unrecognisable. The new work has some white lizards and red lines which were not in the artist’s original work that was sold to the gallery owner last year alongside other works. Sanda was unhappy. He has been dealing with Chief Akar since 2013 and nothing like that had happened.

“It was N240,000. He paid N120,000. He is yet to pay the balance. I was in Cotonou when I came across the catalogue. My mentor had seen the work in a catalogue and he couldn’t understand it so he called me. He asked if it was my work. At first glance, I thought it wasn’t mine. I saw some elements that weren’t mine, those white lizards and red and green lines.

They look like some Chinese symbols. I called the phone number he gave me but I couldn’t reach him so I called his secretary. I said I would come to Lagos. The secretary, Lateef, sent a text message which I will read to you: if you are coming to Lagos for that purpose to make trouble, I think it is unnecessary. Whatever he does is in good faith, after all it is still in your name.’’

The artist arrived in Lagos the following week to see the gallery owner in order to make enquiries about this development. He didn’t think it was right. It is unlawful to do so in Benin where he hails from.

“When I came to Lagos, I went directly to the gallery. I thought his secretary would have told him about what happened. But Lateef didn’t. So, we sat down and talked about the works I had sold to him. He explained that the canvas for that work got wet and he had to restore it. But to restore is different from modifying. Finally, he agreed that he made some addition to the painting. I said he should pay what was left and then sign an undertaking not to alter any of my works. He refused to sign it. And he didn’t pay the money he owed. That was all I was asking,’’ he sighed.

He subsequently went to a police station at Obalende. There, the police told him that they have a limited understanding of his kind of case. But they referred him to Citizens’ Mediation Centre at Onikan where he took the matter eventually. In a letter dated May 10, 2016, the director, Citizens’ Mediation Centre, Mrs. O.A. Odusanya wrote to the Chief Akar, inviting him for a meeting to resolve the matter amicably.

The centre is one of the institutions under the State Ministry of Justice that offers alternate dispute resolutions services to the public. The Gallery owner was not at the two meetings scheduled and a call had been put through to the gallery from the centre. The response received was that the gallery owner had travelled abroad for medical treatment and would not be available for the meetings.

Although the artist is convinced that the gallery owner is deliberately stalling the proceeding, it is imperative to give room for events to unfold. This reporter sent messages on the social media platforms, Facebook and LinkedIn precisely, to Chief Akar to get his side of the story but there was no response. Fortunately, after seven weeks, this reporter called the gallery and was informed that Chief Rahman Akar had returned to Lagos.

One could have missed the gallery with its not- so -conspicuous presence opposite Jazzhole. Akar promptly invited this reporter into his office, waltzing through the network of art works on display. Although it was tempting to stop and glance at the beautiful pieces, it was not the reason for the visit.

“The artist was introduced to me by another artist,’’ he began, facing this reporter who occasionally stole glances at the painting beside him. “The first time he came, I didn’t take any of his works. I saw that his works come from his heart so I patronise him. Sometimes you look at the humane aspect of an artist.’’

Akar denied ever owing Sanda any money. He also said that the auction was done in good faith and proceeds were to go to charity.

“When you do an auction, you will do a catalogue. We didn’t even sell the work. The purpose of the auction was to showcase emerging artists like him. We did it at the Porshe Centre, Victoria Island.’’
Akar said he had restored Sanda’s paintings and the one that is a subject of controversy is just one of them.

“When he brought those works, I think it was raining. I told him that he should return them and fix them since he didn’t have any of his tools with him. He didn’t want to take them back to Cotonou. He said it was too much trouble, by the time he gets paid for it, it won’t be worth it for him. When he tried to do it, he did a very shabby job. I told him to leave them. When works get damaged, some artists will not like to restore it. Therefore, you restore it,’’ he explained.

He went on to cite examples of art works that their restoration sparked public outrage in other climes. In a recent report, a 19th-century fresco had been poorly restored by an unnamed woman in UK sparking anger in London. Art restorations are as good as nose jobs; you can either be in the Michael Jackson camp or Caitlyn Jenner’s.
Akar also claimed that none of the artist’s works had been sold by the gallery. The artist had reported the matter to Oliver Enwonwu who tried to wade in.

“I dealt with the artist out of pity. And I believed that he was good. I have never sold any of his works. I now see why. He has a negative karma within him,’’ he said.
The word about town is that Akar has been having issues with some artists prior to this present one. He didn’t deny that for he said “it comes with the territory’’.

“I had issues with Pastor Babatunde from Universal Studios. There was an artist George Idahosa who lived in Benin, Edo state. I bought a work from him which was quite large. It turned out that Pastor Babatunde has done something similar to this work. He brought police from the station behind the City Hall. He accused me of forgery. He called me all sort of names. How would I have known that the work is similar to Babatunde’s? I didn’t commission the work. He sent several pictures of his works to see.

I convinced the artist to come down from Benin. The minute the artist came to Lagos, the police wanted to put him behind the bars. We discovered that Babatunde had copied an image that Idahosa also copied. The only difference was that the artist from Benin did a larger piece and added a few things. So the police sent the Pastor back to Jesus,’’ he recalled.

When this reporter asked Akar why he refused to sign the undertaking that Sanda claimed he gave him, Akar claimed it was a lie.
“He can say anything. I will appear before the mediation centre. He had a friend in me here. Since you want to know all my life story; another incident is that of Abayomi Barber. I was his patron. He brought a terracotta work for me which I sought his permission to do I bronze because terracotta can easily disintegrate when it falls. I couldn’t find anyone who could do the right job.

A guy from Benin who had designed the bird at the CBN building in Lagos did the finishing. I knew Barber very well. I knew all his children. His wife raised all his children bore by some other woman even though she was barren. I would visit her with my children.

“I went all the way to Sango Ota to seek his authorization to have the work cast in bronze. Dealing with artists is no different from dealing with ashawo (prostitutes). It comes at a cost. All of a sudden, some guy came from a lawyer with a letter, accusing me of being a forger. That I eat where I have not sown. The number of names he gave me was as long as a paragraph. I was asked to pay a sum of N2m in two weeks.

I couldn’t believe it. I used to take foodstuff to his wife even when no artwork of his was sold because the wife is such a wonderful human being. I had a letter of authorization from him so I showed it to the lawyer. Even his lawyer was ready to sue him for me.

He later came to apologise that it was his son and someone from Universal Studio that convinced him to push the matter. I gave him N150,000 cheque inspite of everything,’’ he said.

Upon leaving the gallery, this reporter took one last glance at the entrance again and noticed two lizards in metal works. If Akar has a thing for lizards, that would be a topic for another day.

The purpose of bringing this narrative to the fore is not to defame anyone but to understand the legal implications of such transactions between an artist and the gallery owner who buys and sells art works. Hence, this reporter sought the informed views of legal practitioners with expertise in intellectual property laws. In this first instance, can an artist who hails from Benin sue for copyright infringement in Nigeria?

According to an IP lawyer in Lagos who preferred anonymity, the artist can sue even though he is not a citizen of Nigeria since he is a citizen of a country that is party to an international agreement that Nigeria is also party to.

“Section 5(1) (b) of the Copyright Act as amended Cap 28 provides for persons who are neither Nigerian citizens nor domiciled in Nigeria but who are citizens of or domiciled in a country that is a party to an obligation in a Treaty or other international agreement to which Nigeria is a party. Such persons can claim copyright over their works, provided that the work is first published in a country which is part of an obligation treaty or other international agreement to which Nigeria is a party; by the United Nations or any of its specialised agencies; or by the Organisation of African Unity (now African Union); or by the Economic Community of West African States,” the lawyer pointed out.

Nigeria is a party to various international Treaties and Agreements including the Berne Convention for the protection of literature and artistic works (1886). Sanda is from Benin Republic which is also a party to the Berne Convention. Therefore, Sanda can claim copyright in Nigeria under the legal provision aforementioned.

The second issue at stake is to determine whether upon selling his work to the gallery, the artist has no right over the work anymore. The IP lawyer made it clear that the notion of Copyright was meant to establish protection towards the economic rights of an author of a particular artistic work. However, such idea has extended towards the protection of “moral rights” which gives the creator the right to prevent later distortion of his work as it aims to protect the author’s reputation and ensures that an author is always credited for the work. Fair enough, Sanda has been credited for the work. But with those white lizards surfacing in his said work, Sanda is not amused.

Under the Copyright and Neighbouring Rights Act, which protects the economic and moral rights of the author, that is the creator of a work of art, there is a legal framework with preventing measures and protective mechanisms to combat the violation of an author’s right.

The IP lawyer further explained that copyright is separate from the right to possession of a work. Certainly, when a copy of a work is sold, the buyer has the right to redistribute or resell without the consent of the artist. Still, selling an artwork does not automatically transfer copyright to the buyer. The artist still retains both exclusive and moral rights to the work.

This means that where the buyer intends to use part of the work to reproduce a new one, permission and credit has to be sought from the artist. In addition, moral rights give the creator control over the outcome of his artistic work along with protecting his reputation. This includes the creator’s right to receive credit for the work, prevent the work from being altered without permission, control over who owns the work and how it is displayed.

Furthermore, Section 11 of the Copyright Act 1990 shows that the owner of a copyright has the right- , amongst others, to object and to seek relief in connection with any distortion, mutilation or other modification of, and any other derogatory action in relation to his work, such action would be or is prejudicial to his honour or reputation.

Article 6b of the current Berne Convention Treaty which Nigeria is a party to, includes a moral rights clause that protects authors’ rights to decide whether and when to publish works, claims of authorship after the work is published, and preservation of the work’s integrity.

The IP lawyer further stated that the artist can prevent his work from being altered, distorted or mutilated and determine when it can be displayed.

“In the instant case, Sanda’s artwork was altered even to the point that he could not recognise it at first and it was published in a book. As the owner of the copyright, he has a right to preserve the integrity of his work. His permission should have been sought before any alteration was made and published in a catalogue.

“Sanda has to show that the mutilation tarnished his reputation even though derogatory remarks were not written about the artist over the painting. He can also claim that the alteration is indeed a destruction of his original work. He also needs to show a significant stature of the original work.

“The buyer or gallery’s display right is limited to only the original work. To place the painting in a brochure, magazine or book, permission should be sought from the artist. Failure to have done this is an infringement on Sanda’s copyright to the painting and he is entitled to assert his moral rights, such as objecting to derogatory treatment of his work. The court may grant an injunction to stop the person from doing the derogatory act against his work,’’ said the lawyer.