Public Art Commissions: Part 1
In response to many readers’ requests for guidance in relation to public art commissions and the legal issues involved and arising, this piece explores key lessons learned from the experiences gained over many years by artists, commissioners and art lawyers.
During the 1970s in the UK and USA there emerged a new breed of lawyer offering specialist legal services to the arts, at low or no cost. Volunteer Lawyers for the Arts, based in New York City, was almost certainly the first such ‘pro bono publico’ service, rapidly spawning many others; from Bay Area Lawyers for the Arts based in San Francisco, to Illinois Lawyers for the Arts in Chicago; other States and major cities followed. Infected by this movement across the pond, Artlaw Services was established in the UK between 1976 and 1978.
What was common to all these legal services was their development of forms of contract in response to artists and arts administrators’ needs for basic legal tools to help themselves deal variously with commissions, sales, galleries, agents and dealers and copyright. These contracts or agreements were intended by the specialist art lawyers who drafted them to serve either as examples of good practice or, more usually, to meet the unique contractual needs of a particular artist and client or commissioner.
Pretty soon, however, certainly by the mid 1980s, there were in general circulation throughout the artworld in the USA and the UK numerous adapted versions of what had been original bespoke documentation. Regrettably, these second and third generation documents came to be used as ‘quick fixes’ by many artists and their clients without giving them serious consideration. By the late 1980s, specialist art lawyers increasingly found themselves dealing with artlaw disputes arising out of naive or inappropriate uses of their original creations.
During the 1990s, therefore, art lawyers began to introduce into professional practice programmes for art students, practitioners and administrators, new techniques and solutions to meet their contractual needs. This has been a long and often painful process, which inevitably threatened the comfort zones of many who had come to rely upon these second and third generation documents. The most important corrective/ educative stop was to explain the drawbacks inherent in slavish use of a so-called ‘model’ form of contract or agreement which appeared to, but rarely would, suit the needs of both artist and client/commissioner.
Such documents can be confusing both to artist and client because:
- they will have been originally created for a specific project, the requirements of which will not be the same as for any subsequent project.
- they are rather like borrowing someone else’s shoes (they will have been worn-in by the original first owner whose feet may be the same basic size as the second-hand owner, but will not fit exactly and eventually damage their feet).
- they will not meet the precise needs of the artist’s client/commissioner whose feet’ will also require a ‘perfect fitting’ to ensure they are satisfied that tile agreement meets their specific needs.
- they are often changed by the artist’s and /or commissioner’s attempting to customise them to meet their precise requirements and, by doing so, will usually undermine or degrade one or more key aspects of the original, so as to render it inappropriate (at best) or plain wrong (at worst).
- they are seen by artists (less often by commissioners) as being an easy, quick fix for aspects of professional practice which they would prefer (if possible) to ignore; and therefore inhibit the artist from learning and developing from useful experiences of the commercial dimension.
These are the key drawbacks of using such ‘off the shelf’ contractual examples. But what are good practices, and how can artists and their clients acquire them?
A good practice tool kit should consist of three essential elements; a basic understanding and sound working knowledge of:
- what it takes to achieve a legally enforceable and binding contract or agreement.
- the essential ingredients for (in the case of public art commissions) what the artist and client need to do to make their project a success.
- interpersonal negotiating skills.
What is a legally enforceable and binding contract?
It is not necessarily:
- a piece of paper with words on it.
- a document agreed by the contracting parties and ‘signed, sealed and delivered’.
- something which only qualified lawyers can create.
These three points represent key myths about contracts which still exist in the minds of many artists and their clients.
In the UK, legally enforceable and binding contracts are created and successfully executed by everyone, every minute of every day, without thinking; we do not necessarily need lawyers or documents to do so, and most of us do not give them a second thought. For example: you go to a newsagent to buy today’s newspaper, saying which one you want and offering the asking price, take your purchase and any change. That is a legally enforceable and binding contract; if the newspaper is last week’s edition, you are entitled to your money back (for breach of contract by the newsagent); or, if you did not give the correct purchase price by mistake, you must do so or return the newspaper (because you are in breach of contract with the newsagent). Another example: you agree to sell your painting to a buyer for a named price, and you are given a cheque accordingly, the buyer takes the painting and you bank the cheque, but it bounces. The buyer is in breach of contract, and still owes you the agreed purchase price.
In both these examples, the most important point is not simply that there were breaches of contract, but the fact that in each case a legally enforceable binding contract had actually been made. How so?
UK law has for centuries allowed people to make legally enforceable and binding bargains/deals in their own ways, without dictating how they should do so; unlike in some foreign countries where commercial contracts are often governed by a strict mercantile (or commercial) legal code specifying that such contracts must be made in writing, signed by the parties, and/or witnessed or drawn up by a qualified lawyer. In UK law, save in certain exceptional cases (such as transfer of ownership of freehold property or of intellectual property rights), an agreement will be legally enforceable and binding if there is sufficient evidence that a commercial offer was actually made and accepted.
The important phrase in the previous sentence is ‘sufficient evidence’ which, in its simplest form, could be the evidence given in court by the disputing parties that a deal was done and what its terms were. At its most complex, such evidence could take the form of a written agreement, drawn up by qualified lawyers for both parties, and signed in the presence of witnesses. At both these extremes, so long as the court is satisfied that there is ‘sufficient evidence’ of the deal, then it will be recognised and given effect by the court.
Myths and confusion often arise because many people still (wrongly) believe that if there is no documentary evidence of the deal, then there is no deal. Not so; if necessary, the parties to the agreement could give evidence to the court about what they said and did, and so satisfy the court.
This simple and flexible approach of UK law, developed over many centuries and now adopted in many other countries, is intended to facilitate the making of legally enforceable deals by ordinary folk, without the need for the involvement and cost of lawyers. And, on the whole, the system works well.
In the case of artists and their clients, it is important at the outset of potential commercial discussions for both to appreciate that their conversations and behaviour may well result in a legally enforceable and binding deal being made (at least in the mind of the other party, if not also in their own mind) and for them to be absolutely clear what they intend, what has been agreed, and what has not.
Good practice suggests that all discussions and eventual agreements on a project are committed to writing, not to make the deal legally enforceable, but to avoid any confusion, misunderstanding, faulty memories, dishonourable changes of approach (and the like) and, if necessary, to assist any court to be satisfied that a deal was actually struck and what its terms were.
Each public art commission will be unique, and it is not the purpose of this guidance to anticipate the unique needs of the artist, client, agent, funding body, eventual owner, or anyone else involved. What can be done is to offer a basic; structure of the essential ingredients upon which the contracting parties should always negotiate and agree (or disagree). The suggestion is to divide negotiations into five separate phases, dealing with:
- origination and fee
- fabrication, fees and costs
- installation, fees and costs
- maintenance, fees and costs
- ownership, moral rights and copyright.
Phase 1: Origination and fee
It is important for artist and commissioner to be clear at the outset of the distinction between the aesthetic skill and labour required from the artist to develop an original design, model or maquette (on the one hand) and its execution, fabrication and installation (on the other hand). In too many cases, because the commissioner is willing to pay one (usually fixed) amount for the overall project, they cause the negotiations to focus from the outset on the executed and installed artwork to the exclusion of the most important aspect of any project: the artist’s manifestation of the original idea/solution. Focusing upon this origination phase also has the distinct advantage of enabling both parties to ensure that the artist gets paid an agreed fee, even if the commissioner subsequently pulls out of the deal (a perennial occupational hazard). And so the parties need to identify an element of the overall budget which will be the artist’s ‘origination’ fee. It follows that the key elements of this phase should include discussion and agreement of at least the following:
- what original designs/models/maquettes the artist will produce for the commissioner’s consideration (perhaps by referring to rough plans/drawings made during initial discussions or even earlier).
- the date by which such work will be produced.
- a global fee to be paid to the artist for carrying out such original work.
- payment terms: for example, one third of this fee to be paid before the artist starts work (a demonstrable commitment by the commissioner, which is normal practice in the design, publishing, music and broadcasting industries); one third when the artist has completed, say, two-thirds of the origination work (so that the commissioner can comment on the work in progress and offer their response); final third on completion of the original designs/model/maquette.
Some artists have difficulty negotiating any element of their global origination fee up-front, and need to learn how to persuade the commissioner that this is a sound and reasonable practice, which demonstrates faith in the project by the commissioner and that, by the same token, the artist is placing faith in the commissioner by undertaking two-thirds (the artist decides how much this will be) of the origination work having only received one third of the origination fee. (For those interested in historical precedents, most renaissance artists were commissioned on this basis, though not necessarily being paid in three stages, but certainly being paid a substantial sum up-front).
Clearly depending on the size, scale of fee and length of the overall project, this three-stage example could appropriately be two, four or more stages (in the case of a recent major public art commission in the UK, the origination fee was paid in six two-monthly instalments over the two years it was agreed would be needed to develop the original designs).
At the so-called ‘rejection fee’ stage (in our example, when the artist offers the commissioner sight of the original design when ‘two-thirds’ is completed), it is open to the commissioner to ask for revisions, in which case the artist may be able to absorb them during the final third stage, or may wish to re-negotiate the fee for the final third stage because the revisions may involve substantial new work. The commissioner may, for whatever reason, wish to walk away from the project altogether; in which case, the artist will have a straight choice: accept the ‘rejection’ and ensure that the second third is paid for what will have been two-thirds of the origination work done; or try to secure payment of the final third.
Whatever the situation, the separation of this origination and fee phase of the deal from the other phases of negotiating, should ensure that both parties do not get confused over the need for the artist to be paid, come what may, for origination.
Assuming that this first phase is successfully negotiated and agreed, the next phase should be negotiated: fabrication.
Phase 2: Fabrication, fees and costs and all successive phases will be discussed in next month’s issue AM235.
© Henry Lydiate 2000