Public Art Liabilities

Within four days of the opening to the public of Ai Weiwei’s interactive installation, Sunflower Seeds, 2010, at Tate Modern, the public was prevented from walking on 100m handcrafted life-sized porcelain sunflower seed husks spread over the entire floor of the Turbine Hall.

The experience of walking on the seeds was one of the artist’s main intentions. Tate explained why it had decided to deny physical public access to the work: ‘Although porcelain is very robust, we have been advised that the interaction of visitors with the sculpture can cause dust which could be damaging to health following repeated inhalation over a long period of time. In consequence, Tate, in consultation with the artist, has decided not to allow members of the public to walk across the sculpture. The installation is currently viewable from the Turbine Hall bridge.’ The installation will run for six months until May 2011, and Tate has asked the public not to remove any of the seeds, following reports of many such purloinings, although visitors are now kept more than a metre from the seeds with a cordon.

This is not the first public artwork that has caused health and safety concerns over Tate’s unique and extremely popular art commissions for the Turbine Hall sponsored annually by Unilever. Carsten Höller’s Test Site, 2006, comprised a series of huge slides on which the public could helter-skelter from top to bottom of the Hall, some of whom complained that they sustained physical injuries while doing so. Doris Salcedo’s Shibboleth, 2007, intervened directly in the fabric of the Turbine Hall by breaking open the entire length of its floor, starting as a hairline crack and widening to a depth of around two feet. Despite Tate’s public warning signs, handouts and invigilation staff, a dozen or so people reported sustaining minor injuries and several reported more serious accidents, while a hoard of lost mobile phones was subsequently discovered. Miroslaw Balka’s How It Is, 2009, which the Guardian described as a ‘box of darkness that embraces you with a velvet chill’, was a steel container mounted on 2m-high legs that was 13m high by 10m wide and 30m long. The public was invited to pass underneath or enter and experience the interior lined with black and light-absorbing velvet. Some people complained about the hazard of bumping into the pitch-black walls inside.

Sunflower Seeds will not be the last public artwork to cause public health and safety concerns: they go with the territory. Which is why all public art commissioners and artists must do their very best to prepare and protect the public against potential hazards; and equip themselves to meet their very strict legal liabilities for public safety.

Public art commission contracts require artists to conceive and design and fabricate (and often install and transfer ownership to the commissioner) original artwork. Every commission is unique, especially regarding its materials and fabrication methods and shape/form/colours, and so on. Equally, the longevity or lifespan of each work and its maintenance in good condition will also be unique. Ideally, the artist and commissioner will discuss at the outset of negotiations how long the commissioner would like the work to be maintained and to last, and the artist will take this into account when developing and executing the required work. The artist and commissioner would then agree on the work’s maintenance and arrangements for its removal from public access at the end of its lifespan.

The commission contract should therefore specify the agreed lifespan (as well as the work’s maintenance plan). The commissioner/owner of the publicly sited work will usually be liable for injuries it may cause to the visiting public. Accordingly, it is reasonable and sensible for the commission contract to require the artist to give a legal warranty or guarantee of the work’s being free from inherent/latent faults/defects for its agreed lifespan. And to require the artist to secure and maintain insurance cover not only against inherent/latent faults/defects but also to insure against claims for personal injury or death that such defects may cause; and/or to indemnify the commissioner against any personal injury or death claims that might result from the work’s faults/defects. In these respects, it is important to understand that reliable research shows the most common causes of personal injuries are inherent or latent defects in the design of products, packages, machinery and equipment. It is no less likely that such defects will apply to the designs of public artworks.

For these reasons, it is common practice for commissioners to require public artists to secure and maintain public liability insurance with a reputable insurer with a minimum indemnity level of at least £2m; and professional indemnity insurance with a reputable insurer with a minimum indemnity level of at least £250,000 (professional indemnity insurance covers the artist’s legal liability for providing sound professional and specialist advice to the commissioner, which was relied upon and caused financially quantifiable loss or damage to the commissioner and its agents, employees, sub-contractors and so on). Because personal injury claims must be made within three years under UK law, and can be pursued for a further three years by the victim’s relatives in the event of death, the artist is often required by the commissioner to maintain such insurance cover for the agreed lifespan of the work plus six years after its removal from public access.

Public artists therefore carry substantial professional responsibilities and legal liabilities to both the commissioner and the viewing public. Artists should consider transferring or minimising their own risks of liability (to the public and to the commissioner) via the terms and conditions of contract with any fabricator they have subcontracted, any supplier of materials, technical designer or engineer (in much the same way as commissioners transfer or minimise their own risks of liability to the public via the terms and conditions of their commission contracts with artists). Problems arise when the artist’s chosen subcontractors will only warranty/guarantee their materials and/or work for a much shorter time than the commissioner expects the work to last. In which case, the artist has several choices.

Firstly, to engage an alternative subcontractor to provide a longer warranty/guarantee; or re-negotiate and try to agree with the commissioner a lifespan that matches the subcontractor’s (or alternative subcontractor’s) length of warranty/guarantee; or re-think/-design the work’s materials and fabrication methods better to meet the commissioner’s expectations and any subcontractor’s warranty/guarantee; or accept the subcontractor’s much shorter duration of warranty/guarantee, and be prepared (that is to say be adequately insured) to deal with the potential risks and liabilities for the longer lifespan required by the commissioner; or decline the commission, and thus avoid risks and liabilities to the commissioner and to the public, and the costs of securing and maintaining appropriate insurance for what could be many years/decades to come. Some public art commission contracts require artists to warranty/guarantee the soundness of their work, and to maintain the insurance covers mentioned above, for the duration of the artist’s life.

Some insurers specialise in providing appropriate insurance cover, for modest annual premiums: The Scottish Artists Union’s annual membership fee of £35 includes public liability insurance; as does a-n The Artists Information Company. It is unrealistic to expect public artworks to be perfectly conceived and executed in terms of health and safety; it is realistic and essential that public art commissioners and artists insure against possible future public liabilities.

© Henry Lydiate 2010



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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.