By Oliver Watts, Volunteer, Arts Law Centre of Australia.
First published in ART+law September 2000.
Commissioners often base their public art briefs on civil engineering or architectural contracts. In these contracts it is standard that the engineer or architect assumes all responsibility for public liability and the safety standards of materials used. However, most artists do not have these qualifications.
Design stage
The first question that should be asked of a public art design brief is: can this structure be made safe? Arts Law recently dealt with a commission for a children?s play area made out of recycled materials. Half way through the commission, it was discovered that the commissioner's insurer was refusing to insure the work unless it met Standards Australia certification. This was unlikely given the nature of the materials the commissioner had chosen. In another case, an artist was commissioned to make and design tiles for a mosaic to be inset in a public footpath. This raised the question of who should ensure that the tiles would not cause people to slip.
The process of establishing what, if any, mandatory safety conditions may apply, and whether proposed materials and construction methods will withstand appropriate loads and wear, must be addressed right from the outset. The contract should clearly state who is responsible for providing these specifications and who bears the cost. The artist should not take a professional role in this process unless adequately trained in the particular area. The commissioner will often be in a better position to bear this responsibility as, for example, in the case of a council where there may be engineers on staff. If the job is to be outsourced, the cost should be itemised and factored into the commission price. The Council should also pay for any development consent that will be required.
Construction
The construction stage is (arguably) the only time when the artist should bear any responsibility for injuries caused by the work. Types of insurance the artist may need could include Workcover insurance for employees, volunteers insurance and public liability insurance for members of the public visiting the studio. The artist should ensure that subcontractors have their own insurance or are also covered. If construction is taking place onsite some of these risks may be passed to the commissioner. The commissioner should also agree to keep its staff and the public away from danger areas. There may also need to be insurance for the artwork itself, in case it (or the construction materials) gets damaged or destroyed. Another option is for the commissioner to make the artist a casual employee for this stage of the project.
Installation
Some artists are experienced in working out specifications for foundations, soil quality, or the load-bearing quality of a certain kind of bolt - some are not. If the artist is not an expert, their role should be limited to 'aesthetic consultant' while installation takes place. If the commissioner does not have the requisite expertise to draft and implement the specifications, a professional hanger or engineer should be brought in and the contract price adjusted accordingly. It is important for the artist to ensure that they are not exposing themselves to a claim for injury to the public if the installation is negligently done, just because they were present at the installation. If the artist is giving advice about specifications, they may need to have professional indemnity insurance - an expensive and difficult type of insurance to obtain. Sort these issues of responsibility out in the contract.
And beyond...
Once the work is in place and fully installed the artist's responsibilities should be at an end. Some commissioners ask for a limited warranty period, but it may be difficult for artists to obtain an insurance policy for this. In any event, if the design process has been properly managed there should be little problem with having the work noted on the commissioner's existing public liability insurance policy. Arts Law's standard design and commission agreement provides that the commissioner will maintain public liability insurance and will fully indemnify the artist against any claims.
All ongoing maintenance should be the responsibility of the commissioner. Some artists prepare maintenance guidelines and ask to be consulted if repairs are made on aesthetic grounds. However, this should not mean that the artist is responsible for the ongoing safety of the structure and this should be clearly specified in the contract.
Make sure that you settle these important points in your contract before signing your contract or commencing work. Whatever you negotiate, under no circumstances assume a risk without insurance coverage. For assistance with reviewing a design and commission agreement, contact Arts Law.
