When artists collaborate with the government, both parties benefit. This partnership can enhance an artist’s reputation and enrich a city’s cultural landscape. We’ve seen examples of this in the past, like the Statue of Liberty, which is not only a national monument but also a symbol of New York City. Other iconic public art installations include Chicago’s Cloud Gate (the Bean), St. Louis’ Gateway Arch, San Francisco’s Cupid’s Span, and our local favorite, Seattle’s Hammering Man. (Some of these artworks, and others mentioned here, predate modern copyright law but serve as useful examples.)
Some public artworks have not yet become symbolic of their cities but still hold cultural significance, such as F.I.S.H. in San Antonio, Texas. For each of these public works, an artist was commissioned by a governmental body. Throughout this post, I will refer to these as a city, but understand this can be a city, county, state, or even the federal government. To ensure all parties understand their rights and obligations, contracts are essential. In many ways, contracts for public art resemble general contracts, but there are key differences. Having a knowledgeable advisor review these contracts can help artists navigate important terms. This blog will provide an overview of basic contracting principles, followed by specific points to consider when contracting for public art.
General Contracting for Public Art
Statements of Work
Generally, contracts outline each party’s responsibilities and the actions to take if one party cannot fulfill its obligations. The contract usually includes a scope of work specifying each party’s duties. For public art projects, this often involves specific deliverables or milestones, such as providing sketches or maquettes for city approval, securing engineering endorsements or certifications, creating the artwork, and delivering or installing the final piece.
While we hope for smooth project execution, scope changes are common in public art contracts. As part of the scope of work, it’s important to specify the process for handling modifications. Who bears the costs if the city changes the proposed site or if the artist cannot secure necessary materials? Addressing these questions in the contract minimizes issues later on.
Compensation
Another critical part of public art contracting is payment. This provision can range from a straightforward single payment upon project completion to a more complex structure with partial payments tied to milestones. Payment schedules vary depending on the project’s complexity and the contracting parties involved.
Material costs and other expenses are often overlooked. Does the artist pay for materials? What if a site is changed by the city increases material used and thus increases the materials costs? Who covers travel expenses or installation fees? Contracts may provide for a retainer, advance, or reimbursement, depending on the situation. When planning for possible contract changes, specify how these changes affect project costs, potentially setting an hourly rate for additional work or material costs. Artists should also consider any tax implications that may result from the contract.
General Provisions
As with any contract, several additional terms are typically included: Insurance, Liability, Termination, Warranties and Representations, Dispute Resolution, and Force Majeure. Here’s a brief explanation of each provision, along with points relevant to public art contracts:
- Insurance provisions specify if insurance is required and name the beneficiaries. Cities may obtain or require the artist to take out life insurance, with the city as the beneficiary, in case of death or disability.
- Liability provisions address limitations on liability and indemnification. Generally, limitation of liability will limit the amount the city is liable for. An artist may also limit their liability if possible. Indemnification means one party defends the other if a lawsuit arises. For instance, the artist may have to defend against copyright infringement claims, depending on the provision.
- Termination provisions help clarify what happens if the contract is ended early. It is recommended that you work through this at the beginning of the contract, as figuring it out during a conflict is very hard. These clauses often address artwork ownership and intellectual property created. Understanding the distinction between breach and material breach is crucial, as well as knowing any period for curing the breach.
- Warranties and Representations are promises that each party makes. A common promise is that the work is the artist’s original creation, protecting the city from copyright claims. Some contracts now specify that no part of the artwork was created using artificial intelligence, reflecting uncertainties about ownership of AI-created works.
- Dispute Resolution provisions may include arbitration, mediation, venue selection (requiring disputes to be settled in a specific court), and choice-of-law terms. Arbitration, though often cheaper and faster, is private, provides limited discovery, and the decision may not be appealable.
- Force Majeure clauses have become more common since COVID-19, allowing a party to exit the contract if an unforeseen event (like a pandemic or war) makes project completion impossible.
Specific Provisions for Public Art
Public art contracts often address particular issues unique to such projects. While the exact approach depends on the artist, the artwork, and the contracting party, here are some common considerations:
Installation
Who handles installation? Is it the artist, a third party, or the city? Who prepares the site—providing a base, obtaining permits, or supplies installation equipment (like cranes)? If the city prepares the site, does it bear those costs? This process can be divided into separate expenses and assigned accordingly.
Ownership of Intellectual Property Rights
Ownership of intellectual property rights is a key question, as it determines who can reproduce or make derivatives of the artwork. For example, does the city have the right to sell miniatures of the artwork, like the Statue of Liberty souvenirs, or does the artist retain these rights? By holding onto copyright, the artist can make replicas or derivative works, such as smaller models for sale or incorporating a part of the original into a new piece.
If the artist retains rights, the contract should include a license granting the city permission to display the art publicly and possibly use it for promotional purposes. Being specific in the license terms helps prevent future misunderstandings.
One crucial term in this section pertains to an artist’s moral rights, protected under the Visual Artists Rights Act (VARA). If you want to learn more about VARA, check out this post: An Introduction to the Visual Artist Rights Act (“VARA”). Only a written agreement can waive VARA rights. Since public art typically qualifies as fine art under VARA, artists should understand if they are waiving their VARA rights and what this means.
Maintenance of the Work
Consider what happens to public art years after installation. While some pieces are not meant to last long, others, like bronze statues, can endure with proper care. Artists should specify maintenance responsibilities to avoid neglect or improper cleaning methods, such as using power washers on bronze. This is especially important if the artist uses unconventional materials, like iron, aluminum, stone, concrete, resin, or epoxy, which require specialized care.
If the artwork is damaged, who covers repair costs? Must the city use the original artist or a specific conservator? Contracts should address these questions as well.
Finally, what happens if the artwork is removed or relocated? If the artist’s VARA rights remain, they may have some say in the process. The contract can provide additional terms, like allowing the artist to repurchase or resell the artwork if it’s removed or giving them a paid consultancy role in relocation efforts.
Conclusion
These contract terms help artists and commissioning parties understand their rights and responsibilities, reducing the likelihood of conflicts. This blog provides general information only and should not be considered specific legal advice. This article, or contacting Apex, does not establish an attorney-client relationship. If you have questions or want to learn more, please contact us or visit our blog.