Public Art Commissions
The process of applying and being accepted for a public or private art commission is long and involved but, once it is over, the artist can concentrate totally on his or her artwork, right? Unfortunately, the end of one stage simply means the beginning of another, perhaps not as long in duration but just as--or more--complex. Welcome to the commission agreement.
This agreement is a legally binding contract that lays out the requirements and expectations of both artist and commissioning agency; the contract, which may reach 30 or 40 pages or more, is usually written by lawyers for the agency, requiring the artist to obtain legal counsel for a review and possible proposed changes.
In the spring of 2006, Inigo Manglano-Ovalle, a multi-media artist in Chicago, received the good news from the public art committee of the City of Miami Beach that he had been selected to create a sculpture (a white marble ''iceberg'') for South Pointe Park. The budget for the commission was $500,000. It was what he received next that was the bad news--a 25-page contract for the commission from the city’s legal office, full of penalties and potential liability and legal remedies and assignment of risk for this, that, and the other. ''It seemed to me I would be opening myself up to a whole lot of problems if I signed it,'' he said. ''It was a bad contract,'' said his Chicago lawyer, Scott Hodes, who tried (not all that successfully) to renegotiate the terms of the deal.
While public agencies grab most of the headlines, most commissions are not from public agencies but come from private sources such as airports, churches, schools, hospitals, corporations, museums, individuals, and private non-profit organizations according to Jack Becker, executive director of Forecast Public Art, a consulting and grantmaking organization in St. Paul, Minn. ''More new buildings are put up by private developers than by government,'' he said, noting that for private developers ''commissioning art isn’t a regular thing. They don’t have people on staff who do this regularly, so when their lawyers try to create a commissioning agreement, they cobble together ideas from other areas of the law that they think make sense.''
The result often is the artist hiring a lawyer to negotiate the contract, which adds time and expense to the project, which may be unavoidable. ''I’m taking the chance that all the money I’m spending on my legal representation will be well spent,'' Manglano-Ovalle said. On rare occasions, no agreement can be reached. ''I’ve walked away from one project I was selected for,'' he said, ''because the terms were so horrific, and they wouldn’t budge. There are other commissions that I never applied for, because I knew what I’d be getting into.''
In a different variation on this theme, Scott Hodes stated that some corporations and institutions, which seek to acquire a single piece of public artwork, recognize that they do not know art world practices or what should be in a commissioning agreement, and assume that the artists do. These artists will be expected to produce a contract. Certain artists who regularly are chosen to create a public work of art have become familiar enough with the legal fine points to handle all the contractual negotiations on their own. ''I’ve written up my own contracts. I know what they need to contain,'' said muralist Richard Haas, who added that he has ''saved a lot of money over the years by doing this part of the job myself.'' In all instances, however, artists should be familiar with the basic concepts of an art commissioning agreement.
The artists (or artists, if more than one) and the organization, individual, or agency commissioning the artwork should be identified at the top. It should be clearly stated that the artist (as an independent contractor and not an employee) is in charge of the design, selection of materials and fabrication of the artwork, how the piece is to be installed, and who is in charge of insuring it. When installed, there should be some plaque crediting the artwork to the artist, as well as listing the date of the piece and that the artist retains copyright. The party commissioning the artwork is responsible for obtaining any and all licenses and permits, preparing the site where the object will be installed and informing the artist of any laws or regulations that may affect the design of the piece.
What are the dimensions, materials, subject matter, making processes and finishes of the artwork being created? How will it be mounted, framed, hung, or otherwise installed? Where exactly will it be installed? The artist also will warrant that the final artwork has no defects in materials and workmanship.
The artist should provide a realistic completion date, which may be very specific (June 15th) or approximate, using such language as ''on or about'', or ''by such a date at the latest'', or ''between such and such dates.''
The artist should write up a budget, detailing all expenses, using realistic numbers rather than inflated figures (in order to bilk the commissioning party) or heavily discounted figures(to seem like a bargain).
Being selected for a commission eventually involves payment, but the process of applying also consumes an artist’s time and energy, which should be reimbursed. Finalists for public art competitions and individuals asked to submit proposals should be paid for their work, regardless of whether or not they are selected.
Site preparation is the responsibility of the commissioning body, and installation costs and the hiring of an engineer to approve specifications also should be paid by the sponsor.
How will the artist be paid? There should be a method of payment, and many agreements employ the one-third rule--one-third on signing the commission, another third when work is two-thirds complete, and the final amount when the work is completed and installed. The artist should be paid whether or not work is accepted, and there may need to be an allowance for travel (site research), equipment, research, and materials. Any costs incurred from delays not attributable to the artist should be paid by the commissioning agency. If conditions outside the artist’s control result in delays, the artist should be allowed a reasonable extension in which to complete the project.
Artists rarely get rich from public art commissions. The overall budget may be large but, out of that, the artist may need to spend a large chunk on materials, legal and consultant fees, hiring assistants, rent, insurance, storage, transportation, and time. Manglano-Ovalle stated that ''I lost money on my first contract with the General Services Administration,'' the federal agency whose Art-in-Architecture program commissions artists to create artworks for federal buildings. In part, that resulted from his own ignorance--''I didn’t know how much it would cost to do''--and for delays created by the building contractors. ''I was held hostage to a general contractor’s schedule; meanwhile, I was still paying assistants and taking time off from production of other works that would have brought me some income.''
It is often the case that artists will discount the value of their own work when making a public art proposal, precisely because ''they want their work to be exposed to a wide audience,'' said Thomas C. Danziger, a New York City lawyer who has negotiated numerous public art agreements. ''A 20 percent discount is the norm.''
Disputes may develop during the process, which may be resolved informally or through the mechanism of mediation or arbitration. A contractual clause covering dispute resolution may keep a commission from being cancelled or the parties hiring lawyers and going to court.
|Even after a proposal is selected, there is an approval process, usually in stages, that may consist of rough sketches, drawings, and maquettes. These stages usually are equal to the number of payments, and they also permit dialogue and discussion about the artwork and any modifications that may be needed. However, changes resulting from discussions may increase costs, and those expenses need to be negotiated. Andrew Epstein, a lawyer in Boston, Mass., noted that agreements should not include any sort of final ''to your satisfaction'' clause--''that’s the worst kind of language to put in, because you may be dealing with someone who is unreasonable, and you don’t want payment to be dependent on satisfying someone who won’t be satisfied.'' The stages of a multi-stepped approval process should catch problems well before that point. If changes are requested at some point during the process, the artist should be compensated for time and material costs.
Does the person who is negotiating with the artist have final authority for commissioning the project and approving the designs, as well as accepting and paying for the completed work? In a number of instances, people in authority whom the artist had never met turn up at some late stage with veto power. Haas stated that, in a corner of a mural at a California bank, he painted a medieval gargoyle, which a senior bank director decided was ''an image of the devil, and it was because of this person who hadn’t taken part in any stage of the process that the bank wouldn’t make the final payment.'' Haas offered to ''make the image more neutral, if they paid my way out there and put me up in a hotel. They agreed to that. I went out there with my paint box, and it took me all of five minutes.''
As the name suggests, public art also includes the ideas and feelings of the public, and individuals or groups may react negatively to an artist’s commissioned work. Representational art is particularly prone to attacks by groups who object to how they are depicted, which Haas found after he had created a mural at The Tombs, the New York City jail, in 1989. A Down With the Mural Committee was formed within a year by Latinos, who criticized the figure of a drunk lying on the street next to a building with the word ''bodega'' on it as defaming the Latino community. ''The people who had approved every stage of the design and execution of the mural suddenly couldn’t be found, and I was left to answer all the criticism myself,'' he said. Again, he negotiated for more money and set about repainting a section of the mural.
Situations and ideas change over time. The people who were enthusiastic about a mural or sculpture 10 years ago may become less enthusiastic, or new people will replace them who, for instance, want to own the building but not the mural on the side of it. The federal Visual Artists Rights Act, an amendment to the Copyright Act, prohibits owners of artwork created after 1990 from altering, moving, or destroying the art without receiving the living artist’s permission. As a result, in many public art commissions, artists are asked to waive their VARA rights in order that future owners may remove the artwork for whatever reason. Usually, artists accede to that request, but they may ask in return that the artwork be given back to them or put in storage at the owner’s expense.
Organizations, individuals, and agencies that commission artwork usually demand unique pieces, that is, not one copy from an edition. Individual public artworks, however, may become popular, leading both the artist and the agency to seek to produce copies for the purpose of promotion or sales. ''Artists should resist giving up their copyright,'' Scott Hodes stated, only permitting limited use of the images under separate licensing contracts. A clause in the commissioning agreement might note that the artist may reproduce the image of a sculpture in two dimensions--for instance, on a t-shirt or on a brochure--or even three dimensions, if created in a miniature form. The agency may also want the same rights. Nothing should prohibit the artists from creating other artworks in a similar style.
As physical objects, artwork may cause injury if it falls on top of someone or if edges are too sharp. Sculptural elements may give way under their own weight, and paint might crack and fall off. It is reasonable for artists to warrant the design, fabrication flaws, and structural integrity of the materials for a period of one year but, their lawyers counsel, not more than that. The dispute between the City of Miami Beach and Manglano-Ovalle specifically involves who pays for insurance, court costs, legal fees, and settlements in the event of someone becoming hurt on or around his artwork. Manhattan arts lawyer Donn Zaretsky advises artists not to accept any liability for injuries as part of a public art commission. ''The commissioning agency should pay all legal fees and judgments,'' he said. ''I call it the artist-can-sleep-at-night clause.''
As physical objects, artwork may require regular care or conservation treatments. Artists should provide detailed written instructions on the type of care needed and how often. During their lifetimes, they should be given the opportunity to make or supervise repairs and restorations at a reasonable fee.
Not every contract is fair. Artists with major reputations are more likely to resist demands to waive their VARA rights or to accept modifications in their designs, while others who see public art commissions as a career boost are more apt to give way. Andrew Epstein stated that he once represented an artist who had been selected for a project outside a government building in New York City, and was given a contract that he termed ''onerous, just horrible. They could make changes to the artwork without contacting the artist; all liability was shifted to the artist; the artist had to pay for insurance in perpetuity. It was ridiculous.'' However, despite his reservations, the artist ''made the decision that she wanted the artwork hung in that particular location more than getting a fair deal. The lawyer for the commissioning agent knew the contract was one-sided, but he said it was take-it-or-leave-it, because there was a waiting list of artists wanting to install work in that location. What can you do?''
You might want to consult an attorney. Seventeen states around the country and the District of Columbia have volunteer lawyers for the arts organizations, which provide legal counseling, mediation, and sometimes legal representation for artists on a discounted or pro bono basis (http://bit.ly/HB-ArtSupport). You also may need to spring for the cost of a lawyer, preferably one who has a familiarity with commissioning agreements involving artists. A source for information on such lawyers might be the state arts agency, and artists might also contact the state or municipal agency that commissions artworks for public buildings for names of lawyers that artists have used. Sometimes, the same lawyers have worked at different times as representatives of artists and for commissioning agencies, which makes them wise to all the tricks.
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