I'm not sure if this is allowed to be posted in this group, but I think it is worth mentioning. Please read and I hope we can spread the word.
Introduction Tinga Tinga Art Style
The imaginative Tinga Tinga painting style from Tanzania emerged 40 years ago. It was created by Edward Saidi Tingatinga, who became an artist, and unwittingly the creator of a world famous painting style. A small group of five people worked closely with Edward Saidi Tingatinga in the early days and continued to paint after Tinga Tinga's death in 1972. According to the artist Mr. Hasani, the group held a meeting after the death of Tingatinga and decided to use the name Tinga Tinga for the future paintings. Only one, Mr. Amonde from the original group is alive today and is still painting.
A new generation of Tinga Tinga artists have added their own radiant, dynamic and humorous motifs and intricate compositions.
1.` Most Tinga Tinga artists live and work in Tanzania's capital city Dar es Salaam. But there are Tinga Tinga artists in Arusha and on Zanzibar.
Tingatinga Arts Co-operative Society
In 1990 (28 July) the old core of Tinga Tinga's artists (22) organised themselves with a chairman, a secretary and a pooled economy, Tingatinga Arts Co-operative Society (TACS). Prior to this a more loose organization existed called Tingatinga Partnership. Today, there are 54 official members of TACS, and up to 100 artists that paint at the Morogoro Stores (premises which were financed by the Helvetas/ Swiss Embassy in 1997) in Dar es Salaam. All in all there are around 500 Tinga Tinga painters in Tanzania.
Over the years many international Tinga Tinga exhibitions have been held in Europe, Asia, USA, Canada and South America. A number of artists have travelled abroad in connection with these exhibitions. Amongst them Omari Amonde, David Mzuguno and more.
Background for present situation
In September 2006 an agreement was made between Tiger Aspect Productions (TAP) and 2 Tinga Tinga artists; Hasani Kamale and John Kilaka to take part in a pilot project. The goal of the pilot project was to produce illustrations for the children animation films based on Tinga Tinga art and East African fables about animals. The two artists worked in Nairobi in December 2006 and January 2007. On the basis of the pilot project TAP decided to produce 52 episodes of `Tinga Tinga Tales' in partnership with Walt Disney, BBC and the production studio in Narobi called HomeBoyz Radio/Studio. The representative of Tiger Aspect, Claudia Lloyd (CL) contacted the Tanzanian book illustrator, Godfrey Semwaiko, who became her guide and primary contact to the Tingatinga Arts Co-operative Society (TACS).
1 The most significant difference is the number of animals and birds in each painting, the sophisticated detailing in composition and form, and the switch from Masonite to canvas. New motives have been added such as stories from rural life, Mashetani (Devils), tropical fish and flowers and the landscape surrounding the snow clad Kilimanjaro.
In 2008, on 5 March CL from Tiger Aspect Productions and Godfrey visited TACS, held meetings and a competition was initiated among all the Tinga Tinga painters as CL wanted a list of four painters who would travel to Nairobi to make illustrations. The artists agreed to this, anticipating good work in Nairobi. All artists were requested to paint a peacock and a monkey, size 45 x 45 cm. Some artists painted more than one painting and after finishing the paintings these were placed on the floor and CL selected 13 artists. According to the artists CL only reluctantly paid for the paintings, each painting 10.000 Tsh. (USD 7.96 / EUR 5.15). She later selected four artists out of the 13 painters.
During the meeting and the time before and after Godfrey Semwaiko raised several questions regarding copyright and payment with CL.
On 7 July 2008 the main contract between Tiger Aspect Productions and Tingatinga Arts Co-operative Society was signed by the Chairman Mbwana Sudi (the Chairman, Vice chairman and the Board of Trustees has later been changed). It appears that CL did not contact Godfrey on this visit, and he was not included in the meeting when the contract was signed.
The contract was written in English. Out of all the board members only Agnes the niece of Simon Mpata spoke any English. Claudia Lloyd brought along the Kenyan Myke Rabar, the director of HomeBoyz Radio/Studio in Nairobi, who had been selected for the production of the animations by TAP. Myke Raber explained the contract in Swahili before it was signed. The following day, after the contract had been signed, a Swahili version of the contract was given to the cooperative. The first installment of 7.5 million Tsh (USD 5,514 / EUR 3,787) was placed on the table in cash (see below `Contract') in the cooperative the day the contract was presented to be signed.
The following month the four artists travelled to Nairobi. Individual contracts were developed for each artist. A fifth artist John Kilaka (not a member of TACS) from the pilot project joined the "Nairobi group". The individual contracts stipulate that TAP will apply for work permits for the artists. However, the artists never received work permits even though they provided photographs and their passports to TAP. CL repeatedly promised the artists work permits.
In March 2009 John Kilaka was stopped by immigration at the Kenya/Tanzania border and his passport was stamped indicating that he had been working without a permit in Kenya. This in turn has led to him missing an opportunity to attend his own exhibition in Czech Republic as he could not obtain the visa as the consulate is in Nairobi, where he could not return due to the stamp in his passport.
CL returned to Dar on 31st July 2009 to present the first animations to TACS. On this occasion she was accompanied by Mwandale Mwanyekwa the famous female Makonde sculptor. According to Mwandale CL had informed her that she was there to buy some Tinga Tinga paintings and had not disclosed the true working relationship with TACS.
At the meeting between Claudia and TACS a number of important questions regarding the copyright of the original Tinga Tinga designs were raised but no clear answers were given. Some designs in the films resemble the original Tinga Tinga designs.
According to the painters, some designs were never painted at the Studio in Nairobi but copied from the paintings bought at the Cooperative (Antilope, Fish and Bird design) . However in an email dated 10th June 2009 CL states the following about the use of the designs:
" with regard to the Cooperative‟s artwork, you are certainly entitled to continue to exploit your existing artwork commercially as you have done with Lilanga. All Tingatinga artists follow/adopt a similar style of artwork (identifying them as followers of Edward Saidi Tingatinga) which results in the portrayal of certain animals in a very similar fashion. All tingatinga artists are free to continue to exploit these generic designs and or to create new original artwork in the normal fashion. However no person is entitled to copy and/ or adapt a substantial part of any artwork commissioned, owned and created by Tiger for the Programmes. Hence if Tiger commissioned the creation of a new animal for the Programmes and/or the design of a common tingatinga animal/image (such as an Antilope, bird, Buffalo, Butterfly, elephant, Fish, Giraffe, Leopard, Lion, Masai, Shetani or Zebra) in a new and original fashion, these original artworks cannot be copied and adapted by the Tingatinga artists as they are owned by Tiger and relate to the Programme."
Another issue raised at the meeting was the wrong information about Tinga Tinga, which had appeared in presentations in various media commissioned by TAP
On October 2009 the Brand Licensing Fair took place in London. TACS had paid for a 4 sq m stand and was close to the big TAP stand. The manager met some people from the TAP marketing department and requested a meeting. Despite several serious attempts the manager never managed meeting with anybody from TAP. However the contacts established in London became useful as the manager could now write to CL and copy the letters to other relevant people in TAP.
Starting in September 2009 the TACS asked the Tanzania National Arts Counsel (BASATA) for legal assistance. BASATA provided a lawyer Mr. Mwanas Rutagatina who drafted a letter to TAP on the behalf of BASATA and the Government. The letter was sent to TAP in the beginning of December 2009. It appears that instead of replying to BASATA's letter, a letter was sent to TACS on 14 December 2009 signed by the PR manager, Mr. Iain Mccallum. He now took over the communication between TAP and TACS.
In February 2007, a few days after the Pilot project by Tiger Aspect Productions had been completed, Mr. Yves Goscinny, a Belgium curator, who has lived in Dar es Salaam for more than 10 years, curated several Tingatinga exhibitions, and written books about the Tingatinga art style and the Tingatinga artists assisted Martina and Daudi Tingatinga the children of the late Edward Saidi Tingatinga to register the name "Tingatinga Quality Trademark" with BRELLA/COSOTA (The Copyright Society of Tanzania)
A few days after the main contract between Tiger Aspect Productions and Tanzania Arts Cooperative Society was signed, on 10 July 2008 a contract was signed between Mr.Yves Goscinny and Daudi and Martina Tingatinga (the owners of the name Tingatinga) stating that Mr.Yves Goscinny buys the rights to the "Tingatinga Quality Label".
It is only recently that TACS and its members realize that they are being exploited by large companies (Penguin, BANDAI), which are producing Tinga Tinga books, toys, umbrellas, boots, raincoats, etc. using the artists designs (stylised by TAP) and that Tinga Tinga trademark and copyright has been sold and that no royalties will be given to the painters or TACS.
On 26 January 2010 the first Tinga Tinga animation was aired by BBC
The TACS will receive a lump sum of 30 million Tsh (USD 25,157 / 16,009) divided into 4 instalments. Godfrey Semwaiko asked that this amount be paid in Pounds because of the devaluation of Tanzanian Shilling, but CL allegedly refused. The first installment of 7,5 million Tsh (USD 5,870 / EUR 3,735) was placed on the table in cash although Tiger Aspect was aware that TACS has a bank account in the moment of signing the agreement. The second instalment was paid into the bank account at the insistence of DA in June after CL asked if the Cooperative wanted to be paid cash or on the bank account. The third installment is due in May 2010 and the fourth and final instalment is to be paid before the 31st December 2010.
The most contentious issue in the contract seems to be the following clause 1b:
"to the extent that you own any right or title in and to the name Tingatinga‟ which is not already in the public domain, you hereby grant us an irrevocable exclusive royalty-free license to use and otherwise exploit the title Tinga Tinga‟ in connection with the exploitation of the Programmes and all and any rights ancillary, allied and subsidiary therein in all media now know or hereafter devised and to apply for and register trademaks or designs or such other protection as may be available in any country of the world in connection with the Programmes‟ title Tinga Tinga‟ and the development production and exploitation thereof in all media now know or hereafter devised throughout the world in perpetuity." (see TAP's email to DA in the below section additional information)
Jon Gisle, Attorney-At-Law and former Vice President of the Labour Court of Norway, kindly agreed to go through the contract and he has provided the following comments.
Comments to contract by Jon Gisle, 15 January 2010
The contract I refer to is between Tiger Aspect Productions and the Tinga Tinga cooperative, which is assumed to represent the Tinga Tinga artists. In addition, point 3 in the contract seems to suggest that individual contracts between the TTP (presumably a subsidiary of Tiger Aspect Productions) and the individual artist will be drawn up. These contracts I have not seen. All terms are, however, presented in the contract between Tiger Aspect and the cooperative, so the content of the individual contracts generally should be self-explanatory.
The contract raises a number of questions. Although individual contracts will be drawn up, the main premise is drawn up in the contract with the cooperative. There is no evidence that the cooperative can represent all Tinga Tinga artists. This would have to be stated in the cooperative's internal regulations/constitution, or in agreements between the cooperative and the artists. This is extra problematic because not all Tinga Tinga artists are included in the cooperative. One of the artists who has
been working on the project until now, is not a member of the cooperative. Can the cooperative tie in this artist? And what about new artists that start Tinga Tinga in the future?
The contract is not signed by the cooperative. One should of course not ignore the fact that there is a signed copy somewhere. But perhaps there is an advantage that the signature is missing all the while there are many unclear questions relating to who can sign on behalf cooperative, how far-reaching his or her powers are, and what the legal relationship is between the cooperative and the individual members (and non-members). (See Contract)
The contract's paragraph 1b includes a far-reaching transfer of rights from the cooperative to Tiger Aspect / TTP, who get an exclusive right to the trademark Tinga Tinga in connection with the project itself and all exploitation of this in all media. Tiger Aspect / TTP have the right to register trademarks and designs with the copyright for them in every country in the world for all future. In practice, this can lead to the cooperative losing the economic rights of their own art. In addition this being legally problematic, it also raises the question of the legal rights of the artists who are not members of the cooperative. Moreover, this arrangement is very contentious from a cultural policy point of view. In any case the cooperative presumably does not own the brand Tinga Tinga in the first place? This is not a trademark, but an art tradition/genre? (ref. www.tingatinga.org.) The artists are employed on a "work for hire" contract. They are therefore not employees who are employed in TTP, but casual workers who are hired to TTP from the cooperative. In most cases this leads to worse conditions than if they had been employed. Amongst others the artists themselves must pay for their stay, which is not a given if an employee is retrieved from one country to another. That overtime is unpaid, is also to do with this type of employment. It is also of concern that the work is paid with a lump sum, regardless of how much Tiger Aspect / TTP profits through the project. And does the cooperative have the right to hire out its members?
It also creates uncertainty that Tiger Aspect can transfer the project to another (point 5, "person" must here mean "legal person", i.e. a company, etc.)
Point 6 may also create uncertainty; that any dispute shall be settled by English law, is acceptable, but it seems confusing that the venue (law court) is in England or Tanzania.
The contract has no point 2, but it is presumably an irrelevant lapse. Or has something been taken out?
Each artist has the right to be credited. It is part of an originator's ideal (moral) rights and is an international copyright convention. It appears that TTP violates this.
The resettlement of parts of the profits to education in East Africa is apparently sympathetic, but leave at least three problems. Firstly, one can wonder why this is not mentioned in the contract. Secondly, this scheme is only worth something if the project makes a profit. Thirdly, one would think that the surplus should rather go to the Tinga Tinga artists to help them to maintain the tradition (with all due respect to the education sector, of course). In conclusion there is much in this contract, which raises concern. At worst, a part of Tanzania's cultural heritage is sold out of the country.
End of comments
Additional information 6. February 2010
TAP seems to have misrepresented Tinga Tinga in media from the beginning. In the first articles there was no reference to Tinga Tinga art, articles suggested that Tinga Tinga is a new product created in Kenya by Tiger Aspect Productions.
The artists whose illustrations appear in the Penguin books are not credited in the books. According to DA TAP´s explanation is that there is no physical space in the book for attribution.
Two names are misspelled in the films of the episodes of the Tinga Tinga Tales television series of the animations. One name being an entirely different name. TAP stated in the email correspondence with DA that the names were checked with the painters, however, the painters say they were never asked.
The cooperative is angry that the animations no longer look like the Tinga Tinga painting style, yet uses its name. The manager is very concerned of the future implication for the artists, the selling of trademark name, and copyright to generic designs that artists have been using in the past and will continue to use in the future.
In the promotional DVD for the Tinga Tinga Tales TAP has completely redefined the meaning of Tinga Tinga (see promotion material). Again nowhere is mentioned that this is a Tanzanian art style.
The production is being sold as a `corporate social responsibility' project in that the promotion material states that 50% of the profits will be given to education on the African continent. TACS has not been informed about this. DA came across this information for the first time in The Guardian newspaper UK about a year ago. When DA asked CL about this she said that this was not part of the TAP project, and that it was initiated by Disney. CL also said this may not happen, as it depends on the size of the profit, amongst other things.
TAP presented the production at London Licensing Fair in October 2009. DA took part with a stand, where he presented Tinga Tinga as an art style from Tanzania, as this was omitted from the TAP stand.
At the fair DA was approached by Russian TV who was willing to pay 800.000 USD for the licensing fee for Tinga Tinga Tales. DA was also approached by BANDAI (toys) who said they would have bought rights from TACS, but they had already bought from Tiger Aspects. (APP 14)
The contract has never been presented to the members. According to the cooperative's constitution the members must be informed of all contracts signed.
After the Cooperative has asked many times to report about Tinga Tinga CL managed to include two photos on the BBC radio´s website on 4th February 2010. But these photos were from another Tinga Tinga organisation and not TACS.
On 02 Feb 2010 Tiger replies the following to DA regarding clause 1b: "Your interpretation of Clause 1(b) is not as we understand it. The agreement confirms that Tiger has the ability to use the words "Tinga Tinga" as part of the Programme‟s title and that Tiger has the ability to protect the programme‟s title only (i.e. "Tinga Tinga Tales" as a collective group of words) by way of trade mark registration around the world which will enable Tiger to exploit the Programme and any Programme spin off products (i.e. products concerning the Programme marketed under the Programme‟s Title etc). The agreement does not grant Tiger: (i) any rights to register "Tinga Tinga" alone as a TM; (ii) any proprietary rights in the words "Tinga Tinga" alone. As you mentioned below "Tinga Tinga" is a descriptive term of the Tanzanian art form, originated my Mr E.S. Tingatinga. Our usage of the title "Tinga Tinga Tales" only relate to the exploitation of our Programme. Any rights in the Programme‟s title will not prohibit or inhibit the ordinary use of the words "Tinga Tinga" in any way or manner.
The summery was composed by Hanne and Tine Thorup from Denmark. The information in this paper has been provided by TACS's present Chairman Zabury Chimwanda, Vice Chairman Mbuka Abasy, Manager Daniel Augusta, Secretary Rashidi , two board members Thabiti Mchisa and Steven Mkumba and the previous Chairman Mbwana Sudi as well as the artist John Kilaka.
6 February 2010.
This is a fine example of exploitation that seems to happen fairly regularly in Africa.
African Art Online would like to help in any way we can, by you reading this article and spreading the word, it can make a difference to these wonderful talented artists in Tanzania.
Here are a couple of quotes that have been sent to us via email from a representative for the Tinga Tinga Arts Cooperative Society.
This is for media, spread it please to big newspapers
We seek help from an American Lawyer now."
TAP seems to have misrepresented Tinga Tinga in some media articles. Often there is no reference to Tinga Tinga art, articles suggest that Tinga Tinga is a new product created in Kenya by Tiger Aspect Productions.
Tinga Tinga Art is in no way a product from Kenya.
No royalties shall be given to the Artists ever.
Thank you for reading.