As we described in our previous post, percent-for-art programs are successful and popular. However, because there are few common norms in the field or understandings regarding implementation of program initiatives, the importance of thorough negotiations and carefully constructed contracts cannot be overstated.

There is structure in the sense that every ordinance sets forth specific rules and procedures, but complexity lies within the nationwide diversity and the rapid evolution of the programs. Comprehensive contracts, hammered out following patient negotiations, are well advised, and this is so whether the commission is for a public agency or a private developer, and whether the lawyer is representing the artist or the commissioning party.

Indeed, there are few boilerplate terms because art commission agreements are not construction contracts, nor are they services contracts; they are neither vendor agreements nor purchase agreements. One might ask, then, what are they? They are their own animal.

The nonprofit organization, Americans for the Arts, has provided some guidance in the matter, thanks to two model agreements: the Model Public Art Commission Agreement (Agency), and the Agreement for Commission of Public Artwork between Artist and Non-Agency – Private Entity. From these can be drawn a non-exhaustive list of deal points to consider when negotiating contracts for public art commissions.

As noted earlier, there are only a few common expectations. Typically, the artist will be responsible for furnishing all the materials and services necessary for the fabrication of the artwork. The artist is expected to prepare an estimated budget: budget allocation can be tricky in terms of what it actually comprises. Sometimes, the percent-for-art ordinances will clearly state what is contained in the budget. For example, New York City’s policy specifies that the commission must cover the artist’s budget, including design fee, contingency, fabrication, installation, transportation and insurance costs.

The owner will typically be responsible for preparing the site and for giving timely approvals.

Regarding copyright, the artist typically retains ownership of the copyright and the owner is granted a license for reproduction purposes. The scope of the license, and permitted uses by both sides, tends to be an important negotiation point. For example, can the owner make reproductions, such as photographs, for promotional purposes?; does the license cover non-commercial uses, commercial uses, or both? As for warranties, the commissioning party will likely demand that the work be unique and solely the artist’s creation, and that it be free from infringements or encumbrances of any kind. Moreover, the artist is expected to warrant quality and condition, placing on the artist the burden of guaranteeing the delivered work is free from faults or defects for a fixed period (most usually one year from final approval following installation).

Title to the work passes from artist to owner upon acceptance. After acceptance, the burden of maintenance also transfers to the owner for upkeep in accordance with a maintenance manual provided by the artist. Adequate maintenance is important, both because an artist has likely retained some integrity right and because defaulting on that obligation could lead the owner to lose warranty claims regarding quality and condition.

Beyond these few common understandings, the negotiation is up for grabs, depending on the nature of the project, the expectations of the parties, the relative bargaining positions, etc. The issues to be considered include, at a minimum:

  • Timing schedule
  • Payment schedule
  • Approvals
  • Alteration
  • Insurance
  • Risk of loss
  • Arbitration
  • Transportation
  • Maintenance
  • Removal or relocation

It is possible that additional provisions will apply when the commissioning party is a public entity because the public’s money was used for the commission. These would include non-discrimination stipulations, audit requirements, fiscal and contracting transparency or funding stipulations.

A related point to consider is the artist’s rights, a state law right in certain jurisdictions and provided nationally in the Visual Artists Rights Acts (VARA). This Act states that the author of an artwork of visual art has rights of attribution and integrity, specifically:

(1)[…] the right—

(A) to claim authorship of that work, and
(B) to prevent the use of his or her name as the author of any work of visual art which he or she did not create;

(2)[…] the right to prevent the use of his or her name as the author of the work of visual art in the event of a distortion, mutilation, or other modification of the work which would be prejudicial to his or her honor or reputation; and

(3)subject to [certain] limitations, […] the right—

(A) to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation, and any intentional distortion, mutilation, or modification of that work is a violation of that right, and
(B) to prevent any destruction of a work of recognized stature, and any intentional or grossly negligent destruction of that work is a violation of that right.

The rights granted under VARA can be waived, but only in writing. Where this occurs in a public art agreement, the waiver is typically substituted with certain provisions governing integrity of the work and attribution to the artist. These artists’ rights issues will come into play if an owner desires to alter the work, or remove it or relocate it to a site not intended by the artist, as will be discussed in more detail in our next post on this topic.

Approvals are important to the process. The owner will be entitled to give its approval (or not) at different stages of the process. For instance, the parties can negotiate to obtain approval on preliminary design of the work, or any subsequent modification, or before fabrication actually starts. Initial consent goes hand-in-hand with final approval, which approval the owner will give upon acceptance of the artwork.

Approval can also become the artist’s prerogative in case of alteration or projected removal of the artwork. Consent is typically not necessary in the few cases where the artwork is deemed to be a hazard to public health or safety. It is left to the parties to decide whether, when and how consent from the artist should be obtained, and for what purposes the owner can remove, sell or even destroy the art, unless the matter is governed by VARA and state law. For example, in California, Section 989 of the Civil Code places certain obligations on an owner of real property who wishes to remove a work of fine art which is a part of that property.

The commission agreement creates an enduring link between the parties, as their relationship will exist throughout the entire process and for the lifetime of the artwork itself. This non-exhaustive overview of issues demonstrates the need for expert and specialized advice when drafting percent-for-art commission agreements. Whether one is the artist or future owner of the art, both parties should seek to avoid an ugly legal dispute by addressing these considerations in the commission agreement.

In our next post, we will conclude this topic by addressing a very public lawsuit involving the public art of Alice Aycock at JFK Airport, and will note some other public art cases as well.