One of the Arts Law services available for subscribers is a document review session with a volunteer lawyer. Our volunteer lawyers are private lawyers specialising in the arts and entertainment industries who willingly devote some of their time to assisting on Arts Law matters, and we truly appreciate their support. Cass Matthews is one of these wonderful lawyers, and worked on the case below.
Rod Nash was shocked when a Sydney council told him to stop work on the sculpture they had commissioned him to make for a public library. He was suddenly lumbered with the rather large, unfinished, site-specific sculpture for which he had not yet been paid.
Rod contacted Arts Law to find out his rights. In particular, he wanted to know whether he was entitled to the outstanding amount which the council had agreed to pay for the sculpture even though they no longer wanted it. As there was no formal written contract between Rod and the council our first task was to determine what agreement, if any, existed regarding the sculpture commission.
Rod's sculpture, called Seed, was selected from several sculpture proposals considered by the council. In early 2009, Rod received an email from the council stating, "the Design team was very pleased with your presentation and have decided on you as the preferred artist... Congratulations on your success for this commission." The email did not mention any further approval process regarding the project.
The details of Seed's construction and installation were decided during several meetings and telephone discussions between Rod and the council over a few months. Rod provided the council with a model and full size drawing of the art work, a paint test and a detailed budget of $12,300. The design and budget were verbally agreed by the council. At their request, Rod submitted an interim invoice for $6,000, which was promptly paid.
Four months after the commission was confirmed, Rod received an email from the council stating, "I am very sorry to have to tell you that 'Seed' has not received final approval... it will not be possible to see it gracing the Library." This came as a complete surprise to Rod. Having relied on the council's promises he had already spent six weeks working on the sculpture and over $4500 on materials.
Based on Rod's verbal and written communication with the council, it seemed very likely that a binding contract did exist between Rod and the council. A contract does not generally need to be in a specific form to be enforceable; it can be verbal, written or a mixture of both. In this case, rather than a formal written contract, the agreement was made up of a number of different documents, emails and conversations.
During the advice session with Rod, we drafted a letter of demand to the council. The letter clearly outlined Rod's position that the council were bound by a contract according to which they owed him $12,300 in exchange for the sculpture. As a result the council paid Rod the outstanding amount and took possession of the work.
In this case the artist was fortunate that by contacting Arts Law and sending the letter, the council realised they had acted incorrectly in attempting to cancel the commission. He was able to avoid the difficulties often involved in enforcing a verbal, or partially verbal, contract once a dispute has arisen. Even though verbal contracts can be enforced, a written agreement is a better record of the promises each party has made. Artists who are commissioned to make a sculpture should ensure that the deal is in writing so they are aware of their rights and obligations before they start work.
Cass Matthews a lawyer specialising in arts and media law.
Related
- Public Art: Design and Commission Agreement
- Design and Commission Agreement
- Sale of Artwork Agreement
- Letter of Demand
- Debt recovery letter of demand