The second part of an article from the Artlaw Archives that look at considerations when creating a contract for a public art commission.
Last month's column continues.
Phase 2: Fabrication, fees and costs
In this phase, the parties will be contemplating their having a successful design/model/maquette which will need to be fabricated; in which case, they will need to discuss and agree at least:
- fabrication materials, and their fitness for purpose
- completion date
- fabrication fee and associated costs (ie whether the artist will pay for the materials and labour out of the fabrication fee, or whether the commissioner will pay separately for these).
Some artists prefer to 'front load' their origination fee, so as to absorb the fabrication fee and costs (see AM234); others to keep their origination fee at low or no cost, and include it in the fabrication fee and costs phase. Whatever choice is made, it is important to distinguish between the fabrication phase and the origination phase (for reasons given earlier); just as it is important to distinguish the fabrication phase from the installation phase.
Phase 3: Installation, fees and costs
Artists and commissioners all too often fail to address this important phase properly, and to keep negotiations separate from phases 1 and 2, with the result that appropriate expenditure is skimped or ignored altogether, leading to unnecessarily bitter disputes very late in the day (and often too late for appropriate financing to be secured).
Accordingly, both parties will need to discuss and agree:
- method and manner of delivery of the finished work (or its fabrication on site, if that is the case); and dates
- access to the site; and dates
- preparation of the site; and dates
- installation processes and techniques; and dates
- health and safety aspects of the installation process
- landscaping the site after installation; and dates
- appropriate signage (acknowledging the work, the artist, and/or commissioner as appropriate)
- costs of delivery, installation, landscaping, signage and relevant insurance arrangements; and who pays
- installation fees (if any) for the artist and/or their independent contractors
- method and manner of payment of costs and any fees.
As with phases 1 and 2, artists may wish to 'front load' all or part of these costs into their phase I fee, and require less or no payment for this third phase; or vice versa. There is no single best practice, and the artist should therefore evaluate (as will the commissioner) the risks of front' or 'back' loading their fees and costs, bearing in mind that circumstances may change over the life of the project (including changes of mind by the commissioner, and/or the site owners, and/or the financial backers/sponsors of the project).
Phase 4: Maintenance, fees and costs
Of the five key phases, the fourth is the roost often neglected during initial negotiations, and therefore most frequently gives rise to disputes and, regrettably, litigation before the courts. Good practice requires all parties (not just the artist and commissioner, but also any financial sponsors, public art agencies, site owners and any others interested or involved) openly to discuss the life-expectancy of the work and its maintenance. (Again, historical documentation records that, as far back as the Renaissance, patrons /commissioners required the artist to guarantee a minimum period of years that the work would be expected to last in decent condition). Many issues need to be explored, including
- the method and manner recommended by the artist for maintaining the work
- frequency of health, safety and deterioration/telaintonance surveys; and by whom
- a maintenance manual prepared by the artist
- arrangements for the artist being informed and consulted when maintenance or renovation is required
- clear responsibilities of the owners of the site and/or owners of the work (if not the same individual/body)
- responsibility for costs of maintenance
- payment of maintenance and/or consultancy fees to the artist (if any)
- public liability insurance and payment of premiums.
Each of these key issues (and other detailed ones related to them) requires in-depth discussion and foresight of the consequences of the installed work failing to be maintained, being vandalised, or revealing an inherent design or fabrication fault (most personal injuries and/or damage caused or contributed to by public art works appear to result, in whole or in part, from design or fabrication faults).
The need for financial sponsors and commissioners to plan for the long-term costs of maintaining public art work cannot be stressed enough; experience reveals that such essential good practice is more often neglected than observed.
The key issues of this fourth stage often revolve around eventual ownership of the work: the fifth interrelated phase of negotiations.
Phase 5: Ownership, copyright and moral rights
Who will eventually own the work? The answer is not always simple, especially five, ten or 25 years after installation, and when all original documentation may have disappeared (if it ever existed). There is a need for both parties and all others involved in the project to specie at the outset who will eventually own the work; it could be, for example,
- the artist (even though they do not own the site)
- the commissioner (even though they do not own the site)
- the site-owner (even though they have not paid for the work or its installation)
- the financial sponsor (even though they do not own the site)
- some other person/beneficiary.
Whomever it is to be, clear documentation needs to be created (as if creating the title deeds to freehold property); preferably by way of a contract for sale (if the work is to be bought as part of the deal), by a 'deed of gift' (if that is the case), or by any other evidence of transfer of ownership. The risk is that just because the work is no longer in the artist's possession or control, the person or body which does have possession or control believes (perhaps wrongly) that they are its owners (until the work deteriorates and/or causes injury or damage, in which case fingers will be pointed in all directions).
The serious question of injury or damage caused by the work also relates to the equally important legal issue of the artist's moral rights; that is to say, the artist's enforceable legal right to prevent (or be compensated for) the work being treated in a derogatory manner (by way of any addition, amendment or alteration to it, or deletion from it). These legal rights were enacted by the Copyright, Patents and Designs Act 1988, and require that those in possession or control of a public artwork must ensure that no such derogatory treatment occurs; and must take appropriate steps to protect such works for the lifetime of the artist and for 70 years after their death. This legal duty should cause all parties involved in such commissions to reflect very seriously, at phase 4 in the negotiations, about who will be responsible for maintaining the work for its (agreed) lifetime; it should also cause the parties to agree on whether the work is site specific (ie not to be removed).
Naturally, the 1988 Act prevents anyone other than the artist from reproducing or merchandising copies of their own original works; including anyone who owns such works or has them in their possession or control. In the case of public artworks, the 1988 Act allows such works to be reproduced without the artist's permission in two-dimensional media (such as photographs, drawings and prints). However, only the original artist has the legal right to make three-dimensional reproductions or adaptations of their original work. Good practice requires that the copyright position is made clear throughout negotiations and eventual agreement.
Interpersonal negotiating skills
There are five key skills which contracting parties (and their agents/brokers) should develop and utilise:
- preparation: consider and list all of the matters discussed above and develop 'bottom lines' and negotiating options for agreement
- negotiation: be ever mindful that negotiation is not the same as consultation, and that discussions are aimed at arriving at
- win, win' solutions (ie that both contracting parties and any others involved or interested expect to, and should always, achieve a successful outcome)
- notation: both parties should make contemporaneous notes of all their telephone conversations and face-to-face meetings; to refresh their memories later, to avoid subsequent disputes or changes of mind, and to assist in formal documentation
- documentation: the parties should agree which of them will process their notes into a formal record of the conversations/meetings and send the resulting letter/note to the other party for their formal amendment/ agreement (in the design industry, such formal notes are appropriately called 'client contact reports')
- duplication: always keep a copy for later reference.
Be wary of using contracts which were used by others for their specific purposes (for reasons given earlier); and only use them (if at all) to cull ideas for the matters needed to be discussed, negotiated and agreed for the specific project being created.
Depending on the scale and importance of the project, the parties may benefit from seeking the advice and assistance of a solicitor who specialises in the law relating to the visual arts; both artists and commissioners will need to build in the likely costs of their doing so when planning the overall costs of the project and the artist's fee structure.
© Henry Lydiate 2000