Public Art and the Law

Architects’ collaboration with artists and craftworkers has been the subject of serious debate and some activity over the past five years.
The ‘art and architecture’ movement in the U.K. started with the 1982 ICA Conference, and was immediately followed by the establishment of the Art and Architecture Groups. In 1984 came Art Within Reach (published by Art Monthly in collaboration with the Arts Council of Great Britain and the Crafts Council, through Thames and Hudson) reviewing the making of public art in this country by artists and craftworkers liasing with architects and patrons – plus the related exhibition at AIR Gallery; and the Public Art Development Trust was established.

Recently the Department of Environment, the GLC (until 31.3.86.), some local authorities and Regional Arts Associations, have tried to develop and introduce their own administrative and financial policies and schemes for the better promotion of public commissions. During this period, however, no steps have been taken to inaugurate ‘Percentage For Art’ (% Art) legislation – the compulsory spending of a small percentage of all public building budgets on public artwork – to bring us in line with most other European countries and some States in the US.

At the outset, this question of legislation was, and still remains, a major issue for those concerned to improve the number and quality of public commissions: the debate five years ago centred on whether the introduction of voluntary policies by publicly-funded bodies was the best and only answer, merely a good first step, or whether the serious lobbying for the introduction of % Art legislation was the prime consideration – or a combination of all thrusts simultaneously. There were those, including myself, who favoured the latter, arguing that publicly-funded bodies might be better encouraged to introduce their own % Art schemes if they were aware of a parallel and strong lobby for the introduction of legislation. None of us was under any illusion that such energies directed towards some change would produce quick results. That said, five years is not a long time. At this point, therefore, what else might usefully be done, especially by the makers of public artworks?

This column over the last five years has produced a mountain of correspondence and many contacts from makers who have experienced serious problems with achieving, executing, or, after the event, being held responsible for inherent/latent defects/failures of their projects owing to inadequate or inappropriate maintenance arrangements. Whilst each work inevitably has its own idiosyncracies which prevent it being taken as a whole to offer general problems and universal solutions, the sheer number of queries does provoke serious thought. Is the time not ripe for makers to produce a common professional code giving general guidance on the conduct of relationships between commissioners and makers of public art? A fundamental impediment to any common approach on any matter of practice in the visual arts and crafts has been the perennial absence of any recognised body of professional makers, or rather one such national body to which all or most professionals subscribe, which authoritatively speaks for those active in the field. The Art and Architecture Group is understood to be preparing a set of guidelines for such purposes, and this will be a constructive step. Meanwhile, a brief exploration of the key issues which should be tackled may assist those in the field currently or likely to be involved in public commissions.

A simple solution to the giving of relevant information and help would have been to refer to Art Within Reach (which should still be valuable for anyone who has the book or can get access to it), but it is now out of print and copies are scarce. Briefly, the matters which should be addressed are the following.

1. The nature of contractual relationships

It is of paramount importance for all involved in such projects to appreciate how the law operates in this country concerning the making of agreements which are legally binding and enforceable in the courts. Apart from a handful of specialised transactions, the English courts do not require agreements between consenting adults to be made in any particular form in order to give them recognition as valid in law: so long as the two or more parties to a deal express their intention to be bound to perform the mutual promises they have exchanged – I’ll make and install this because you’ll pay me that – the law will generally support the deal by ordering compensation (damages) to a wronged party payable by the defaulter.

Examples of specialised transactions which exceptionally must be made in writing using particular forms of words, before the law will offer support, are transfers of the ownership of land or buildings; and the assignment or transfer of copyright ownership, or the giving of an exclusive copyright licence/permission to reproduce.

Therefore, most transactions, including public art commissions, will be legally valid and enforceable merely if there has been verbal negotiation – so long as the parties have reached a serious commitment to do something of value for each other. Folklore speaks of contracts only being legal if they are written/drafted by a lawyer/engrossed on parchment/tied up with green or pink ribbons/signed, sealed and delivered; this is incorrect, for the reasons given above. But how can anyone prove what was said if the verbal negotiations were not witnessed or recorded in some way? Good thinking. If the only evidence of what the parties said to each other is their oral testimony from the witness box at the court of trial of the dispute, then that can be and often is all that is needed to convince the judge who merely needs to be satisfied that one person’s story/recollection/evidence is more likely to be true than the other’s. Given that this is the baseline for the operation of the law, those involved in making deals should take great care to ensure that their verbal statements and comments during negotiations are clearly noted in writing by themselves as they proceed; and at the conclusion of any such discussion – even by telephone – each party should, ideally, have clear contemporaneous records of all that has been agreed – or not – between them.

This procedure not only gives a sound professional image, it also acts as a valuable working documentary aide-memoire for each party – and, if necessary, is admissible in the courts as evidence in the event of things going drastically awry.

2. The need for written records

It follows that anyone considering an involvement in public commissions – be he commissioner, funding body, agent, architect, artist or craftworker – would be courting disaster not to put everything into writing. After making contemporaneous notes, therefore, at the end of any such discussion one of the parties should always conclude with the question: ‘Shall I write to you, or you to me?’ Whatever is agreed, each party should then draft a letter at the earliest opportunity – from the notes previously made – and send it, keeping a file copy, if that has been agreed; or, keep it on file, if it’s been agreed that the other party will write. If no firm agreement has been reached, or even if the potential deal has been called off, letters should still be exchanged to confirm the position.

3. The need to establish identities

Initial approaches occur in many different ways, often disguised as social chats/meetings for other business reasons/a viewing of work/a purchase of work, and so on; and the first serious overtures may come from a third party or agent acting on behalf of a potential commissioner/patron/maker/architect. However discussions start, vigilance is vital in order to spot the development of the dialogue – sometimes over weeks, months, even years – into inaugural design stages towards and through to a full agreement. At this early commission-spotting stage, it is most important to establish the true professional or legal identities of the parties involved in dialogue.

Public commissions usually involve more than two parties (ordinarily, commissioner and maker): often there is a funding body/paying authority or series of them, an architect/builder/main contractor, an intermediary/agent/broker; then the artist/craftworker or their agent/gallery, and any assistants/ subcontractors working to the maker’s specifications. Who’s who and what authority they have for committing themselves should be clarified before the brief is established and the detailed contractual agreements are firmed up between all involved; there can be as many different individual contracts as there are parties involved.

4. The need to establish the brief

Speed is dangerous, especially with major projects: makers particularly should be slow just to say, yes – however tempting a positive offer may appear to be; caution is the order of the day. Negotiations may well need to be made, and agreements eventually readied between, say:

funding/paying authorities themselves: who pays for what, in which proportions;
the payer(s) and the eventual owners of the work i.e. between the payer and commissioner: what the commissioner is going to buy for the money provided by the payer;
the commissioner and main contractor: accommodation of the work
the main contractor and architect: the main project to include arrangements for the artwork;
the architect and maker: management of the artwork scheme within the overall main project;
the maker and any assistants/sub-contractors: execution and installation of the artwork;
the maker and the main contractor: delivery and installation arrangements;
the maker and commissioner: eventual reception, ownership and future maintenance of the artwork;
maker and payer(s): provisions for payment for work done.
Agents acting for any one or combination of the several parties involved can sometimes make these arrangements directly for and on behalf of their Principals (with written copies of correspondence for their Principal’s files), or indirectly with other agents acting for and on behalf of other parties involved – and so on. With major projects involving larger installations and/ or sums of money, each party involved and especially makers would be well advised to consult a practising solicitor versed in such matters – and to build those legal costs into their fee and costing analysis before making a final commitment.

Useful points for all involved to consider, at this stage, are briefly these:

identity of the parties to the agreements.
description of the agreed work/installation.
submission and approval of designs/plans/models/maquettes.
payment (or not) for 3 above – by whom, method and manner.
overall time-scale and dates for each stage e.g. design, approval; re-design, approval; making, approval; adjustments, approval; delivery; installation; hand-over; reasonable life-time for the work.
need for approvals/consents/permissions from third parties, and arrangements to achieve them at the right time.
supervision of progress made at key stages, on behalf of the commissioner.
arrangements for arbitrating disputes between the architect (on behalf of the commissioner or the main contractor, or both) and the maker.
arrangements for preparation of the site for delivery and installation.
contractual arrangements for the transfer of ownership of the work and subsequent legal liabilities for it.
fees: whether global for the whole art project, including ownership and maintenance; or fees for the design and making stages, with separate fee for ownership, and a further separate fee or annual premium for maintenance.
payment; method and manner: whether the classic three instalments – first third of global fee on reaching firm agreement, second third when work two-thirds completed, and final third on delivery, installation and hand-over – plus a sliding scale of premiums for maintenance, fluctuating over a fixed time-scale and dependent on the degree of after-care needed; or – from the above standard arrangements, any number of variations is possible.
copyright: normally retained by the maker for all original artwork from initial sketches, through designs/models/maquettes, to finished piece; rarely, makers completely transfer their copyright – and only for a large and separate, fee – to the commissioner, in which case written documentation is absolutely essential; frequently, makers give commissioners/eventual owners a limited permission (licence) to make specified reproductions for marketing/publicity/advertising purposes – either for a separate royalty payment proportionate to numbers reproduced, or simply include that financial element in their global fee.
public credit and acknowledgement of the maker’s authorship: whether by notices, signage or plaques; form of words and graphics/typography also agreed.
maintenance: preferably a completely separate agreement to operate immediately on handover, for the previously agreed and specified life-time of the work.
insurance: for the work from inception right up to and into the maintenance period, including public liability for damage/injury to anyone visiting the site/work; vitally, cover for the maker’s life (secured by the commissioner, or on behalf thereof) from the initial agreement to design, right through to hand-over and, possibly through any maintenance period.
Time and space here do not allow a fuller exploration of these essentials, which should form the basis of any guidelines/code of practice/pro-forma contracts that might be published for and on behalf of professionals in the field.

5. Guidelines/Code of Practice

Finally, any association or group wishing to publish a constructive series of professional criteria to be used or followed, is required by law to seek and obtain advance approval from the Director of Fair Trading – the provisions of the Restrictive Trade Practices Act 1976 should be referred to on this.

Whilst this may be regarded by some as an unnecessary bureaucratic interference, the spirit and intent of this legislation should be seen to be valuably in the public interest: the public needs to be assured that any such criteria are fair and reasonable.

For my part, I earnestly hope that those in the field do achieve the publication of such a code/guidelines, and that the debate, the activity and the pressing for % Art legislation for this country continue to be energetically promoted and advanced.

© Henry Lydiate 1987

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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.