Arts Law is frequently contacted by artists with concerns about public art commissions they are involved in. An artist recently advised us that a Local Council was refusing to indemnify them in a public liability claim concerning works that had been commissioned eight years prior. The following guidelines may help creators and commissioners of public artworks avoid conflict and misunderstanding both during the commissioning process and for the life of the work.
The commissioner should have a clear idea what it wants out of a public art project before beginning. The notion that a really good work of art can somehow compensate or “solve” an urban design problem, or camouflage a planning and building mess, is both common and fictitious. Consultation with the community during the planning stage is recommended.
A 'Working Group' needs to be created as soon as the project has been proposed. The Working Group undertakes the day to day management of the project.
The Working Group provides:
- a voice for the community;
- a voice for the commissioner;
- a voice for the sponsor (where applicable); and
- enough arts and cultural expertise to ensure fair consideration of proposals and build credibility.
A good rule at the planning stage is to never assume that everyone has the same understanding of terms used. Test terminology and assumptions through open discussions and by committing agreements to paper.
As with planning, it is important to work out who has authority to do what, when and with what approvals. This does not only apply to the artist. If the commissioner, for example the Local Council, has the final approval over budget allocation, does it assume all decisions about selection, project management, liaison and publicity? If the commissioner appoints a Working Group with the task of concentrating on the public art project alone, does the Working Group have any capacity to shortlist artists, commit funds, define briefs and so on? A clear understanding of financial and control delegations is essential. The Working Group may wish to formalise its delegation and reporting obligations and requirements.
There are two popular ways to select artists; open advertisement and invitation. Open advertisement may be a more appropriate as there is a good chance that invitation or direct commissioning, which means simply asking an artist believed to be suitable to create the artwork, may be questioned by the commissioner, the community and by other artists.
The following four-stage selection process is suggested as a basis for publicly funded projects:
- A commission brief is developed. Where appropriate this will involve community consultation.
- The commissioner advertises the project widely, inviting artists to submit expressions of interest or concept proposals, in response to the commission brief.
- A shortlist is drawn up from these initial submissions, and the shortlisted artists are invited to submit a detailed response to the commission brief. An appropriate design fee is paid to all artists at this stage.
- The artist (or artists) is selected on the basis of the detailed submissions.
The brief should contain the following information:
- Identity of the person/group in charge;
- Budget available for the design concept and fabrication;
- Background information on the community, the site and sponsors;
- Details on what is required of the artist at each stage of the selection and creation processes;
- What the commissioner will provide;
- Desired outcomes of the project (material, social, artistic);
- Criteria for selection and who will make the selection;
- Type of work proposed, scale, material constraints and any stylistic preferences;
- Clarification of who will own copyright in the completed work. Confirmation that artists will retain copyright in submitted designs throughout selection process;
- Acknowledgement of the artists' moral rights;
- Sub-contracting options and responsibilities;
- Industrial requirements (unions, site requirements);
- Deadlines and required completion date;
- Dispute resolution process;
- Clarification of what will happen to the maquette/plans/drafts etc of the original proposals (including the successful proposal); and
- Confidentiality Assurances.
- Proposed Contract
Expression of Interest
It is useful for the commissioner to be precise about what is anticipated in an expression of interest. Artists are often wary of undertaking considerable work for an expression of interest without any payment. This is a reasonable position. If some artists submit a written proposal and others submit a fully developed concept, a scale model or a sophisticated computer-generated simulation, selection cannot be made on an equitable basis.
An artist should ensure that their expression of interest conveys that they:
- are seriously interested in being considered for the project;
- understand the brief;
- are available for the time required;
- have given some time and creative energy to the task;
- have provided written information on what is proposed; and
- would like to progress to the next stage.
This information should be sufficient for the commissioner to select a small group to prepare a design concept, with the offer of an appropriate design fee.
Public art projects sometimes call for expressions of interest where the small print states:“This commission will be dependent on a successful grant of submission”. This means that the budget is speculative and artists can be kept waiting for funding for long periods of time. It is far better for the commissioner to wait until it has secured a known budget, before calling for expressions of interest.
A contract is the means by which the parties confirm their responsibilities and promise to fulfil them. While many organisations have standard contracts for the delivery of services, it is recommended that these not be used for the commissioning of works of art. The artist has been selected not just on value for money and capacity to deliver, but on a vision and a capacity to present something special and unique. It is important that the contract captures these special qualities.
Artists are unlike small business or trade organisations in that they usually have little capacity to fund a project in advance. Most commission contracts provide for staged payment: part payment on signing the contract, part payment during execution of the work, and final payment on completion. The contract should indicate the mechanism for making interim payments and should clarify whether completion occurs on finalisation of the artwork or
on its installation. Commission may be payable to the artists gallery. A contract that isolates the 'artists fee' from other costs will enable gallery commission to be calculated fairly.
The contract needs to specify which party will bear the responsibility for various types of insurance such as public liability, professional indemnity and insurance for the artwork itself. Insurance can be a costly item for an artist so confirmation of what is actually required for a particular project is important.
Unless there are specific reasons for regarding a contracted artist as an employee, it is preferable that the commission is undertaken as a contracted delivery of service. Artists may lose rights, such as copyright, if they are considered an employee. These rights may provide no benefit to the commissioner. Further, the commissioner has different obligations to the artist if the artist is an employee, such as superannuation and workers compensation.
Arts Law offers a range of contracts for sale, including a standard commission contract.
Permanence, Maintenance and Moral Rights
Artists may well expect that if a work is commissioned for a public site, it will remain in perpetuity. This is hard to guarantee. It is better to agree that the work will remain in the proposed location for a specific period and its location will be reviewed, in conjunction with the artist, after that time. Any decision to relocate the work should involve the artist and maintain the integrity of the work.
To ensure that the issues of maintenance and longevity of the artwork are addressed, consideration should be given to:
- The intended life of the work;
- The materials to be used and their durability;
- The environment where the work will be located (dampness, extreme wear and tear etc);
- Who is responsible for repairing the work if it is damaged;
- Who decides when the work is damaged beyond repair;
- What the process will be should the site be redeveloped;
- Urgent maintenance issues such as vandalism and the removal of graffiti
Moral rights for artists have been incorporated into the Copyright Act since 21 December 2000. They provide artists with the right of public acknowledgment as creator of a work and the right of integrity, which means that the work will not be materially altered or distorted, or treated in a way that is prejudicial to the artist's reputation. This creates an obligation on the commissioner to consult with the artist if there is a need to relocate the work.
These recommendations were sourced from the Public Art Guidelines for Successful Commissioning produced by the City of Melbourne and Arts Victoria and the Draft Code of Practice for the Australian Visual Arts and Craft Sector, due to be launched in August 2001. An updated version of the City of Melbourne Public Art Guidelines for Successful Commissioning will soon be available on the Arts Law website, reproduced with the permission of Alison Fraser, co-author with Carol Atwell and the City of Melbourne.
Elizabeth Beal was the Supervising Legal Officer.
Negotiating new terrain in public art commissioning, Mehera San Roque, Art Monthly Australia Nov. 2000 No.135