Some interesting and important issues arise around the enduringly popular artists’ competition format. Many sculpture ‘competitions’ contain this word in their title, but some are promoted as ‘prizes’ or ‘awards’ or ‘contests’.
What exactly has an artist won when placed first in a sculpture competition? Solely an accolade, and/or some money, and/or a commission contract to execute and install the proposed artwork? Answers to such questions are many and various, and will naturally depend on the precise terms and conditions of the invitation to submit an entry and artwork proposal.
Consider the following example. An internationally prestigious visual arts institution supports emerging artists by organising an annual sculpture competition, open to all. Artists are invited to submit their proposals and pay an entry fee of £10. The competition rules include the following key points: the prize will be a commission for a work of sculpture; the commissioned work will be suitable for a large outdoor park landscape; the institution will determine the precise location of the work; from the entries six artists will be selected for public exhibition of their proposals; one of them will be chosen as the overall winner and awarded an x thousands of pounds prize. Such competition rules are commonplace: small entry fee to cover administrative costs; visualised proposals; artists shortlisted for exhibition; winner receives the prize. But what, precisely, is the prize?
Artists might have good reason to think it would be worthwhile to invest creative time, skill and labour, plus a few pounds, in the possibility of at least being shortlisted for a public exhibition; at best receiving a cash prize of £x thousand, and realising their site-specific artwork for permanent location in a prestigious place. On the other hand, the competition organisers might think that the winning artist’s prize will not be cash; rather, a commission from them to execute and install the proposed artwork, in consideration for which the artist will be paid the cash. Dissonance between such expectations could lead to serious problems. Say, after choosing and announcing the winner, the organisers for some reason decide not to proceed with the commission. Is the artist entitled to be paid? The artist would almost certainly expect payment, but the institution might argue that the overall cash ‘prize’ was intended only to cover costs of fabrication materials, plus a fee element for work done by the artist, plus payment for becoming owner of the work. They would not, therefore, be obliged to pay anything to the artist because the commission did not proceed. Would contract law judge that a valid contract had been made between the institution and the winning artist for payment of the cash prize, whether or not the commission proceeded? Or would the only valid contract be the commission, and only if it had been signed by both parties?
A widely understood first principle of contract law (under English and other Anglo-related legal systems) is that a legally binding and enforceable agreement requires acceptance by one party of an offer by the other party to provide something of value: ‘I accept your offer to buy my artwork for £x’. When a competition organiser invites entries, artists’ proposals are offers. The selection and announcement of the winning entry signals the competition organiser’s acceptance of the artists’ offer, and may create a contract. But it may not; because the true nature and meaning of the organiser’s selection and announcement of the winning artist needs to be expressed clearly in the published rules of the competition. The reading of rules, as a whole, will determine whether acceptance by the organiser of the winning artist’s offer has formed a legally binding and enforceable contract.
Returning therefore to our case where the institution changed its mind and decided not to proceed with the winning commission, there would be good legal grounds for concluding that a legally binding and enforceable contract had been made between the artist and the institution. In other words, the institution’s announcement of the winning artist signalled its acceptance of the artist’s offer. In which case, it is likely that the institution would be contractually obliged to pay the artist the £x thousand ‘prize’, possibly with a deduction of a fair and reasonable sum for the estimated costs of the fabrication materials that were not bought.
Sculpture competitions can be an effective and efficient method whereby would-be commissioners attract a range of proposals for new (and often site-specific) artworks, especially from younger unknown or emerging artists. Open to all, or by invitation only, sculpture competitions have significantly increased in recent times, as growing numbers of property developers, both private and public, use them as a relatively inexpensive way of meeting their commissioning needs.
Planning permission is required by private property developers, and growing numbers of planning authorities grant permissions with the strict legal condition that artwork is included in developments – the so-called ‘planning gain’ requirement. Local government authorities operate as public property developers, playing a major role in shaping and improving the nature and quality of the built environment in their areas, and most have policies for supporting the arts that include their commissioning public artworks.
Use of standard terms and conditions of business often leads to problems, because they have been drafted by one party without discussion and negotiation with the other party leading to amendments and eventual agreement between them. Terms and conditions unilaterally imposed by one party, on a ‘take it or leave it’ basis, might be legally invalid if they are unfair or unreasonable to the non-negotiating other party. Although sculpture competition rules or entry conditions are published as invitations to enter, they may well operate as unilaterally imposed standard terms and conditions of a legally binding contract with the winning artist. Accordingly, competition rules need to express, in clear and plain language so that all entrants will understand, precisely what the organisers and the winning artist will be legally obliged to deliver to each other. They should also be fair and reasonable rules, because artist entrants will have no opportunity for clarification or negotiation.
Competition organisers may find it helpful, in this context, to consider the tried and tested practices of auction houses. When an auctioneer invites bids for a lot, a bid is a contractual offer (which may be withdrawn before the hammer falls); the fall of the hammer signals the auctioneer’s acceptance of the highest bid on behalf of the seller/consignor, and creates the contract of sale between the seller/consignor and the buyer. Terms and conditions of auction sales are generally published in sales catalogues and/or online to all potential bidders, prior to the sale. Just as sculpture competition organisers issue invitations to submit proposals, auction houses issue invitations to submit bids. They are acutely aware that the terms and conditions of their invitations will become contractual obligations to their highest bidders, and exercise assiduous care in drafting and reviewing and revising their terms and conditions accordingly.
Sculpture competition organisers can benefit from demonstrating an equivalent level of awareness of their likely contractual obligations to potential winning artists, and from exercising assiduous care in drafting their entry rules. Artists will in turn benefit from careful consideration of such rules, so gaining greater understanding what winning really means.
© Henry Lydiate 2011