Who Owns Public Art Commissions?
Following publication in March and April of the two pieces exploring public art commissions (AM 234 and 235) readers’ letters raised interesting and challenging queries. A common thread was the question of ownership of commissioned work, especially in relation to work installed many years previously. A recent enquiry serves to illustrate this common difficulty.
A work was commissioned several years ago by a local authority in England which was developing a new shopping precinct. The artist was commissioned to create a painted relief that was fixed to the external wall of one of the new buildings in the precinct. The work was executed and installed, the artist was paid and the building in question was leased by the local authority to a retail outlet. In summary, therefore, the work was successfully installed on an exterior wall of a local authority-owned building which was leased to a commercial retailer.
Now, several years later, the local authority has recently given planning permission for a development of the precinct, including the building carrying the work. The development would be substantial and structural, and would involve the removal of the existing artwork.
The original artist has objected to the planned removal of the artwork, but the local authority is quite dismissive of the work and sees no problem in ‘clearing’ out ‘their’ work when they want to do so. There is no documentation available to offer any clear evidence of the original commission contract between the local authority (as the original commissioner) and the artist, or between any parties for the ongoing maintenance of the artwork.
This scenario reads like an examination question for a student lawyer or arts administrator; but it happens to be true and represents a classic example of the kind of problems that can be encountered when public art commissions are not clearly documented: all parties appear to be content with the project at the time of commissioning and installation, but have exercised no foresight over the future problems of maintenance or ownership.
A useful starting point for seeking a ‘win/win’ solution (for both local authority and artist) is to ask the question: who owns the artwork today? Steps towards an answer lie in the documentation (or absence of it) for the original commission. Ideally, the local authority and the artist should have a copy of a written agreement specifying (amongst other things: see AM234 and 235) what artwork the commissioner wanted to be created, where it would be installed, when and what fees and costs would be paid by whom to whom. Crucially, the commission agreement should have clarified that the artist would be paid for his or her origination of the work (possibly also its installation) and, quite separately, payment for the sale of the work (when completed) by the artist to the commissioner. This distinction between payment for origination and payment for transfer of ownership not only helps both parties to understand what payments to the artist cover, but also puts beyond doubt who will own the completed and installed art work.
In this case, there is no reliable evidence of these two things, and it would be reasonable to assert that the artist owns the work. Of course, the local authority (or perhaps even the leaseholder of the retail premises housing the work) might very well contend that they own the work – after all, they paid for its having been originated. However, there is the world of difference between paying for a work to be created, and paying for that work’s ownership. In the case of a painted mural, for example, it would be reasonable to say that the owner of the wall would be the owner of the mural, because the paint is indelibly fixed to the wall; not so, however, with an artwork affixed to a wall and capable of being moved.
Returning to the case in question, a reasonable starting point therefore appears to be that the artist owns the work. The next question is whether there is reliable evidence of any maintenance or other agreement by the artist with, say, the local authority or the occupier of the building to indicate that the artist has relinquished or abandoned ownership. In this case, it also appears not to be so and therefore the local authority would be well advised carefully to consider its legal position before taking any action to remove the work.
It may be, for example, that it is reasonable for the local authority to remove from one of its buildings something (the artwork) that it does not own but which it no longer wishes to accommodate. In which case, the local authority would be well advised to consult the artist (the owner of the work, it is contended) to ensure that no damage to the work occurs during its removal; the artist would be well placed to object to any derogatory treatment to the work and to claim compensation for any damage done to it by the local authority when removing it. A further factor needs to be carefully considered by the local authority if the work was commissioned to be created and installed specifically for that site, the artist would be in a strong position to mount a legal claim that the removal of the work from that site would damage his or her professional honour, integrity and reputation. In other words, the artist may wish to object to such treatment (removal from the site) as being ‘derogatory’ within the meaning of the law relating to the artist’s moral rights given by the Copyright, Designs and Patents Act 1988.
Several key lessons may be drawn from the exploration of this particular case. First is the need for artists and commissioners to create clear written evidence of the commission, its terms and conditions, and especially who will own the work when completed and installed. Second is the need for a written maintenance agreement for the work during its future life after installation. Third is the legal right of artists to object to ‘derogatory treatment’ of their work when exposed to public viewing, under the provisions of the Copyright, Designs and Patents Act 1988; including its removal, if it was ‘site-specific’.
In order to arrive at a ‘win/win’ solution to the difficulties described in this case, it would be sensible for the artist and local authority to meet, negotiate, agree the removal of the work and its possible re-siting in a place acceptable to both parties, settle the question of who will pay for the relocation; and for any such agreement to be recorded in writing.
Readers may be interested to refer to a very useful website dealing with public art commissions where many of these issues and other good practice suggestions are made: www.publicartonline.org.uk. For two useful case studies, reference may be made to Liliane Lijn’s Dragon’s Dance (AM 186), and Henry Moore’s Draped Reclining Figure (AM 168).
© Henry Lydiate 2000