Commissions and the responsibilities they bring, part 2

The answer to last month's poser (your commissioned art work sited in a public place falls down and injures someone five years after installation; are you responsible?) is: yes.

'Don't bring me down, don't bring me down'*

Ah but, you might argue, what if I took all possible care in design, construction, choice of materials and maintenance; what about the commissioner's responsibilities for the piece: surely the commissioner is insured against such things, or must have got insurance for me? True and fair; but these are only arguments, and ones that would be raised by any lawyer acting to defend the artist against a law suit for damages. And that is the real point: on the face of it the artist is responsible, and will have to answer the claimant, even though at the end of the day it may turn out that the artist is not in fact legally responsible. All the relevant facts will have to be investigated before any clear view of liability can be taken.

What facts? How the commission came about; who the parties were; what the briefs terms and conditions were; what discussions were held about maintenance and what agreements, if any, were reached. But what if these facts are unknown, unclear or disputed? An awful lot of time and money would have to be expended by lawyers to find or work out the answers – and that would undoubtedly cost the artist and other parties involved a lot of money, and a great deal of worry and anxiety. How can all this be avoided or at least minimised? Contracts (no prizes for guessing right first time).

Obviously, there are some responsibilities that no contractual term can ever avoid (if an artist knowingly builds a dangerous structure, s/he's bound to be liable for damage or injury caused by its fall), but there are many obligations which can be shared, safeguarded, insured against or indemnified for. Let us look at the kind of written agreements which might be appropriate.

Having identified the parties involved in the commission and agreed the terms of the brief (see last month's column), the parties should then decide if models, maquettes, plans and so on are required by the commissioner before the project is given formal approval. If so, then a Commissioned Design Agreement would be a sensible next step. The following might be appropriate:

COMMISSIONED DESIGN AGREEMENT
THIS AGREEMENT is made the .. day of …… 19… between

(NAME)……………………………. of (ADDRESS)…………………………….
(TELEPHONE)…………………………….(“the Artist”)
and
(NAME)…………………………….of
(ADDRESS)…………………………….
(TELEPHONE)…………………………….(“the Commissioner”)
by which we agree as follows:

  1. SUBMISSION OF DESIGNS
    The Artist agrees to submit ….. design(s)/model(s)/maquette(s)/sketch(es)* on or about the … day of …… 19.., for the following proposed work of art (“the Work”).
    (DESCRIPTION)…………………………….
    (DIMENSIONS)…………………………….
    (MATERIALS)…………………………….
  2. APPROVAL
    The Commissioner shall, within ….. days after submission of the design(s) notify the Artist of his/her approval of the design(s) and his/her intention to proceed with the Work.
  3. CHANGES
    If requested in writing by the Commissioner, the Artist agrees to submit up to……additional designs for the Work.
  4. FEES
    The Commissioner shall upon signing this Agreement pay the Artist a design fee of £….If requesting any additional designs under Clause 3 of this Agreement, the Commissioner shall pay the Artist an additional design fee of £…….per design. Fees do not include VAT.
  5. COPYRIGHT
    Subject to Clause 7 of this Agreement, copyright in all designs for the Work is retained by the Artist/assigned to the Commissioner.*
  6. COMMISSION
    If the Commissioner notifies the Artist of his/her intention to proceed with the Work, both parties agree to sign the Commission Agreement (a copy of which is attached hereto).
  7. TERMINATION
    If the Commissioner does not notify the Artist of his/her intention to proceed with the Work, the Artist shall be entitled to retain all design fees payable under Clause 4 of this Agreement. In the event of termination, title to the design, and all rights therein, shall be retained by the Artist/assigned to the Commissioner.*
  8. PROPER LAW
    This Agreement shall be governed by the law of England and Wales.

(SIGNED)
…………………………….
(the Commissioner)
…………………………….
(the Artist)
* Delete whichever does not apply.

The above suggestion is basic and very simple and could be varied to suit the parties' particular needs (should anyone wish to use this model or an amended version, they must consult Artlaw or a solicitor).

If the designs, models or maquettes are accepted and the commission is to go ahead, then a full Commission Agreement should be drawn up and signed (see Clause 6 of the Commissioned Design Agreement above). In the case of a commission which does not require designs and so on, or where a competition has been held (in which case the rules of entry may take the place of the Commissioned Design Agreement), the Commission Agreement should be drawn up straight away. No standard form is possible for this – commissions vary so much – but the following suggestion would be a useful starting point:

COMMISSION AGREEMENT

THIS AGREEMENT is made the … day of ……. 19… between
(NAME)…………………………….of (ADDRESS)……………………………..
(TELEPHONE)…………………………….(“the Artist”)
and
(NAME)…………………………….of
(ADDRESS)…………………………….
(TELEPHONE)…………………………….(“the Commissioner”)
by which we agree as follows:

  1. COMMISSION
    The Artist agrees to create on or about the … day of …… 19… the following proposed work of art (“the Work”):
    (DESCRIPTION)…………………………….
    (DIMENSIONS)…………………………….
    (MATERIALS)…………………………….
  2. PAYMENTS
    (a) In consideration for creating the Work the Commissioner agrees to pay the Artist the sum of £…… (excluding VAT) in the following instalments:
    (1) one third upon signing this Agreement and
    (2) one third when the Artist notifies the Commissioner that the Work is approximately two-thirds completed and
    (3) one third when the Artist notifies the Commissioner that the Work is completed.

    For these purposes, the Artist shall notify the commissioner in writing and shall permit him/her or his/her authorised agents, upon giving reasonable notice, to inspect the Work.
    (b) Subject to Clause 7 of this Agreement, the Artist shall retain title of the Work, and all rights therein, until payment of the final instalment.

  3. ACCEPTANCE
    It is understood that the Artist will use his/her aesthetic skill and judgement to create the Work, and the Commissioner agrees to accept the complete Work unless he/she can show that the Work was not executed substantially in accordance with the description agreed by him/her under Clause 1 of this Agreement.
  4. ACCESS
    If the work is to be created on site, the Commissioner shall arrange for the Artist and his/her authorised agents to have access at all reasonable times to the site between the
    ……….. day of ……….. 19…. and the
    ……….. day of ……….. 19…..
  5. DELIVERY
    (a) Unless the Work is to be created on site, the Artist/Commissioner* shall arrange for delivery of the completed Work to the site on or about the ………. day of ………. 19..
    (b) The costs of delivery (including packaging, transport, and insurance) shall be paid by the Artist/Commissioner.*
  6. SALE
    Upon completion of the Work if created on site or upon delivery of the completed Work, both parties shall sign the Contract of Sale (a copy of which is attached hereto).
  7. TERMINATION
    The Commissioner may terminate this Agreement at any time upon giving written notice to the Artist, who shall be entitled to receive or retain payment for all work done in pursuance of this Agreement up to date of receiving such notice. In the event of termination, title to the Work and all rights therein, shall be retained by the Artist/Commissioner.*
  8. PROPER LAW
    This Agreement shall be governed by the law of England and Wales and may only be amended in writing by both parties.
  9. ARBITRATION
    Any dispute under or arising out of the Agreement shall be referred to an arbitrator to be nominated by the Director for the time being of Artlaw Services Ltd in accordance with the provisions of the Arbitration Act 1950 or any Statutory modification or re-enactment thereof for the time being in force.

(SIGNED)
…………………………….
(“the Commissioner”)
…………………………….
(“the Artist”)
* Delete whichever does not apply.

Are you intrigued by Clause 6? Just because the commissioner agrees to pay an artist to create a work, it does not necessarily follow that the commissioner is also agreeing to pay for the right to own the piece – or even for the copyright. The commissioner may want these things and, if so, they should be discussed, agreed upon and put into writing (that is why last month's article placed so much emphasis on getting the brief clarified before any formal agreement is reached).

Some commissioners may not wish to own the finished piece – ownership brings responsibilities – and so careful thought should be given at the outset. If, therefore, a Contract of Sale is inappropriate, then that step will be omitted; but, if required, it should be prepared when the Commission Agreement is prepared and then signed after the commission is complete. (A Contract of Sale was published in Art Monthly No.8, and a model is also available from Artlaw Services).

Finally, and no less important, maintenance of the piece should be dealt with. Whoever is going to own the piece, or the site or building housing it, should make provision for maintenance. This will not only go a long way toward minimising (or even avoiding) any legal (and therefore financial) liability for damage or injury the work may cause, but will also protect the work and the viewing public throughout its life. This is, perhaps, the most complex area for all parties concerned and sadly (though understandably), the most neglected. Probably the very best solution to questions of maintenance (and ownership of the piece and its copyright) is to create a trust or foundation. This can only be done if there are sufficient funds available for the lifetime of the piece. It's a tricky legal process to set up a trust for this purpose, but it is such a worthwhile method: in essence, an independent body (often, it's four trusted and willing worthies) are given the responsibility of looking after the work together with the necessary funds and, sometimes, the ownership and copyright rights. Alternatively, the artist might wish to make a maintenance agreement with the owner of the piece, whereby the artist undertakes to inspect the work periodically and to execute all necessary maintenance works – for a fee, of course. This type of agreement can be very rewarding for the artist – financially, too. Another option might be for the artist not to sell the work at all, but to agree to create, install and maintain a piece in a place for a period of time. In this way, the artist would be rolling together the Commission and Maintenance agreements and, in effect, creating a permanent source of employment!

The possibilities are endless. One useful example of a public commission agreement made in the States was published in Art Workers News in November 1976, and is reproduced below to illustrate many of the points discussed here.
Agreement between the City of Seattle and Tony Smith:

THIS AGREEMENT, dated November 27,1974, between the City of Seattle, acting by and through the Seattle Arts Commission, hereinafter referred to as “City”, and Tony Smith, hereinafter referred to as “Artist”.

WHEREAS, the City is now implementing a public art programme as set forth by Ordinance 102210 allocating certain funds for the establishment of artworks in public places and authorising the Seattle Arts Commission to make payments for design, execution and placement of works; and

WHEREAS, the Artist has created the following work of art:

Title: Moses
Dimensions: Height: 11ft4.25in – Length: 150in;
Depth: 7ft4in
Media: Painted Steel Sculpture
Hereinafter the described work of art shall be referred to as the “Work”: and WHEREAS, the Work was selected for purchase by the City through procedures duly adopted by the City, and the Artist is willing to sell the Work, and both parties wish the integrity and clarity of the Artist's ideas and statements in the Work to be maintained;

NOW THEREFORE, the parties mutually agree as follows:

  1. The Artist shall sell the Work to the City, subject to the conditions herein, for the price of Forty-Two Thousand Dollars, receipt of which is hereby acknowledged.
  2. A public notice including the Artist's name and mention of the City's ownership shall be publicly displayed and identified with the Work, and shall be paid for by the City.
  3. The Work shall be properly installed and displayed by the City at the Seattle Centre which is a facility frequented by and open to the general public.
  4. The City agrees that it will not intentionally destroy, damage, alter, modify or change the Work in any way whatsoever. If any alteration of any kind occurs to the Work after it has been finally completed and installed, whether such change is intentional or accidental and whether done by the City or others, then the Work will no longer be represented to be the Work of the Artist without his written consent. The City agrees to see that the work is properly maintained and protected.
  5. All repairs and restorations which are made during the lifetime of the Artist shall have his approval. To the extent practical, the Artist shall be given the opportunity to accomplish said repairs and restorations at a reasonable fee.
  6. While recognising that the City does not currently have the legal mechanism permitting the sale of works of art, the City agrees that if in the future the City does sell the Work, the City shall pay the Artist a sum equal of Fifteen Percent (15%) of the appreciated value of the Work.
  7. The Artist agrees to notify the City of changes in his address and failure to do so shall be deemed a waiver to the Artist's rights in Paragraphs five and six above.
  8. The City agrees to maintain on permanent file a record of this Agreement and of the location, condition and disposition of the Work.
  9. The Artist hereby reserves all rights to copy or reproduce the Work, but shall not unreasonably refuse the City permission to reproduce the Work. The Artist also reserves all rights under any copyright laws to which the Work may be subject.
  10. All Changes in this Agreement shall require written agreement signed by both parties.

SIGNED THIS 27th Day of November, 1974. For Seattle Arts Commission: John W. Blaine and Artist: Tony Smith
Dec. 4, 1974

'Sculpture up front' was Deanna Petherbridge's crie de coeur last month, and to that I would add all other visual art works, with this caveat: make sure these commissions are built on strong administrative, legal and financial foundations, as well as on physical ones. The Tony Smith agreement is a good example and reflects the extent to which progress in this field has been made in the States. May I recommend for further reading an excellent recent publication which documents the commissioning of numerous artworks under the Art-in-Architecture Programme of the United States General Services Administration, between 1972 and 1979: The Place of Art in the World of Architecture, by Donald W. Thalacker (director of the Programme) and published in 1980 by Chelsea House Publishers in association with R.R. Bowker Company, New York, London. It is well illustrated and among the artists whose work is dealt with are Calder, Oldenburg, Segal, Tony Smith and Stella.

© Henry Lydiate 1981
(With grateful thanks to Eduardo Paolozzi for his invaluable help in my preparation of these two articles.)

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This article is from the Artlaw Archive of Henry Lydiate's columns published in Art Monthly since 1976, and may contain out of date material. The article is for information only, and not for the purpose of providing legal advice. Readers should consult a solicitor for legal advice on specific matters. Artists can get free online legal information from Artquest.