AFRICA: THE CROWN AFFAIR
An Episode of Making Money with Looted Artifacts
by Metford Ida - African Path
The Crown Affair is the culmination of an 11 year effort to successfully challenge the British Museum’s use of Copyright Law to generate revenue from The Queen Idia mask. It introduces a precedent that applies to all illicit cultural objects, and raises a fundamental question:
Who should benefit financially from an illicit cultural object?
The Crown Affair tells the story of an application to use a British Museum photograph of The Queen Idia mask in a corporate logo, and how the application led to a successful challenge of the Museum’s copyright claim over the image of the mask. It introduces a fresh perspective to the lingering debate on illicit cultural objects. In an era that has seen significant strides in cultural and artistic restitution; like the ongoing recovery of Jewish artworks looted by the Nazi’s during the 2nd World War, and more recently, the agreement by the Metropolitan Museum of Art, New York, to return the Euphronios Krater to Italy. The Crown Affair encourages a more constructive and balanced debate on the issue of illicit cultural objects.
How much has been generated by the museums from this use of Copyright Law to date? How much more will be generated? How has this lost revenue affected the development of museums in source countries like Nigeria? Shouldn’t source countries, like Nigeria, be entitled to benefit financially from their history and creativity?
The aim of The Crown Affair is to trigger an international debate to answer these questions.
It is a cold winter morning in Germany but I am sitting in the warm comfort of a high-speed train, the Inter City Express (ICE) en-route to Brussels. It is a long trip, so I reach for my laptop and log on. An editorial alluding to Markets and Investments grappling with the interpretation of a copyright law with the British Museum draws my attention. It reads, Article 11 of the UNESCO 1970 Convention on cultural objects declares as illicit, “the export and transfer of ownership of cultural property under compulsion arising directly or indirectly from the occupation of a country by a foreign power.”
According to one African maxim, “Until Lions write their own history, the tale of the hunt will always glorify the hunter.” Subsequently, this exposé centres on the abuse of copyright law and is part of an 11-year endeavour by Markets and Investments, to successfully challenge an illegality denying Nigeria the right to revenue from the use of images of known looted cultural artifacts. The exposé provides a compelling case and platform for the Nigerian government or any other government with a similar case to claim revenue derived from looted cultural artifacts irrespective of where domiciled.
Repeatedly, the Greek government have asked the British Museum to return the Elgin Marbles; stolen from the Parthenon according to the Greeks. British Museum spokesperson claims that Lord Elgin did apply for permission from the authority of the time [the Ottoman Turks] to remove the sculptures from the Parthenon. The Museum spokesperson adds, “The Ottoman Turks had been in power for 350 years when Lord Elgin [at the time ambassador to Constantinople] made application. Therefore, the Marbles were properly acquired from the Parthenon and brought to England.” Considering this claim to be factual, but turning to Africa many artifacts were acquired under crushing conditions - no permission sought or application made.
On 9 February 1897, Rear-Admiral Harry Rawson led the Benin Punitive Expedition. Field commanders were instructed to burn down towns, villages and upon capture to hang the Benin king. Monuments, and the palaces of many high-ranking chiefs were looted and destroyed along with the king’s palace, which was set ablaze. 2500 [official figures] religious artifacts, visual history, mnemonics and artworks were taken to England. Sir Ralph Moore KCMG, Counsel General of the Niger Coast Protectorate took one of two near identical Queen Idia masks to Britain. Reportedly, in 1909, Professor Seligman bought the mask from a relative of Sir Ralph Moore, to whom it passed on his death. Today, the Queen Idia mask remains an artifact in the British Museum collection.
Carved [ca 1520] from Ivory, the Queen Idia mask is 25 cm in height and originates from the Benin Kingdom (Nigeria). King Esigie is the ruler who established the office of Queen Mother. This mask represents his mother Queen Idia, who helped to end a civil war at the beginning of his reign. King Esigie wore the mask on his hip, to commemorate his mother during royal memorial ceremonies. In 1977, an image of the Queen Idea mask became the official logo of the 2nd Black and African Festival of Arts and Culture (FESTAC 77) hosted by Nigeria.
In 1995, Markets and Investments decided on a corporate logo comprising a scaled photograph of the Queen Idia mask on a black background including the company name. The choice of the mask was informed by a prominent Nigerian image, to convey the company’s understanding and knowledge of the Nigerian market. In January 1996, consistent with design intentions, Markets and Investments approached the British Museum and enquired about taking a professional photograph of the Queen Idia mask, which when reproduced would bear true semblance to the original mask.
The British Museum said it operated a photographic service and sells photographs of artifacts in its collection and at which time a photograph of the Queen Idia mask was quoted at £11.75. Markets and Investments placed order for the photograph; the purpose for which the photograph was required was also clearly stated. Thereafter, the British Museum dispatched an invoice confirming receipt of payment; said invoice was supported by a letter granting Markets and Investments permission to reproduce the photograph in its corporate logo subject to payment of reproduction fees. In February 1996, Markets and Investments received a photograph of the Queen Idia mask marked Copyright British Museum, ref no. MM031879.
In April 1996, Markets and Investments received a letter from the British Museum requesting information regarding use of the Queen Idia mask photograph. The letter requested specific details, which Markets and Investments later found out were required for calculating reproduction fees due the museum for use of the photograph. Disturbed by the unfolding drama, Markets and Investments sought clarification. Between April and September 1996, both sides were mired in a flurry of telephone conversations and correspondence to resolve the issue, which obviously had become a dispute. Eventually, through a letter, the British Museum delivered a blow by revoking the permission it had earlier granted Markets and Investments to reproduce the image of the Queen Idia mask in its corporate logo. This came as a shock to Markets and Investments.
The Copyright, Designs and Patents Act of 1988 are the current UK copyright law. It grants the creators of literary, dramatic, musical and artistic works the right to control the ways in which their materials may be used. The rights cover broadcast, public performance, copying, adapting, issuing, renting and lending copies to the public. In many cases, the creator will retain the right to be identified as the author, as well as object to distortions of his/her work.
Copyright arises when an individual or organisation creates a work. This applies to a work if regarded as original and exhibits a degree of labour, skill or judgement. Interpretation is related to the independent creation rather than the idea behind the creation. For example, your idea for a book would not itself be protected, but the actual content of a book you write would be. In other words, someone else is still entitled to write their own book around the same idea, provided they do not directly copy or adapt yours to do so.
Names, titles, short phrases and colours are not generally considered unique or substantial enough to be covered, but a creation such as a logo that combines these elements may be. Generally, the individual or collective who authored the work will exclusively own the rights. However, if a work is produced as part of employment, normally the work belongs to the person or company who hired the individual. For freelance or commissioned work, rights will usually belong to the author of the work, unless there is an agreement to the contrary, i.e. in a contract for service.
In relation to where the Queen Idia mask is housed presently, its provenance clearly makes it a looted cultural object amongst others, which the Nigerian government has continued to demand their return. Hence, the British Museum was challenged over the matter. In a ploy, the museum said the letter in which it granted permission to reproduce the Queen Idia mask had been traced. To this end, the museum was prepared to honour the permission and has decided to charge £250 plus VAT for a 5-year non-exclusive licence to use the image.
This vacillation [granting, revoking and granting permission] by the British Museum marked a pivotal point confirming suspicions that the use of copyright law to derive revenue from the image of a looted cultural artifact was questionable. Incidentally, there has been no demand from the British Museum for the £250 plus VAT; allowing for a conceivable deduction that the only reason this practice had persisted was because nobody had challenged it before. Conceding that the only way is to establish this copyright fraud independently, Markets and Investments devised a strategy aimed at successfully registering the corporate logo as a trademark in the UK, thereby challenging the British Museum’s copyright claim. In English law, this would prove that the British Museum did not have copyright over the contested image, thus rendering the British Museum’s copyright claim as bogus.
On 15 June 2007, the corporate logo was registered. Markets and Investment’s UK Trademark Certificate proves that the British Museum has no legitimate copyright claim over the image of the Queen Idia mask. This provides a precedent where copyright law is being abused, to derive revenue from all looted cultural artifacts at the expense of the owners. In Nigeria’s case, this applies to the numerous looted cultural artifacts including the Benin Bronzes, the Nok Terracotta Sculptures, the Igbo Ukwu Iron castings, the Ife Iron and Bronze Busts, etc.
Trade is conducted through the British Museum Trading Company Ltd, which was founded in 1973. Subsequently, to calculate the revenue that might have been derived from these artifacts, one would start from 1973. Given a 5-year non-exclusive licence at £250 plus VAT, such a licence would be up for renewal every five years. Since 1973, to date 7 such licences would have been issued for each individual use of the Idia mask, i.e. 2008-1973 = 35years. 35yrs/5yr licence = 7. To appreciate the enormity of this abuse of copyright law, £250 x 7 = £1,750.00 in reproduction fees from the Queen Idia mask over a 35-year period. Based on a 5-year non-exclusive licence, if 50 people applied to use the image of the photograph over a 35-year period, the Queen Idia mask alone would have earned £1,750 x 50 = £87,500 since 1973.
The number of looted Nigerian cultural artifacts in the British Museum and other museums worldwide is estimated at 4000. Therefore, £87,500 x 4000 =
£ 350 million,
being the potential revenue for the use of images. This sum is devoid of future potential earnings, which should continue perpetually as long as there is demand for the use of images. This is a true case with documentary evidence highlighting a fraud that has gone unchallenged for so long.
SOURCE: MARKETS AND INVESTMENTS