Arts Law regularly receives calls from artists with issues relating to public artwork projects. This article briefly discusses particular areas that often generate problems for artists as well as suggesting other sources of useful information[i].
The public art process[ii]
A public art commission will usually involve a selection process involving advertising and calling for expressions of interest or by direct invitation to artists. From expressions of interest received, a shortlist will be drawn up. Short listed artists are then asked to provide a more detailed submission of their design for the project. This may include models and detailed drawings of the project and may involve a formal presentation of the design to a selection committee. Artists should be paid an appropriate design fee for this stage regardless of whether their submission is ultimately selected. An artist will then be selected and a commission agreement will be entered into.
Letters of agreement
Arts Law is of the view that a formal agreement should be agreed upon as soon as is practicable after acceptance of the final design. However, we recognise that on occasion it may be necessary for the parties to sign an interim letter of agreement. It is important that any letter of agreement accurately reflects the original design brief. Similarly, the letter of agreement should accurately reflect any meetings or discussions the parties have had in the mean time. For example, the brief may have stipulated a 6-month time line, but after discussions the parties had agreed that 12 months is more realistic. The letter of agreement needs to reflect this.
Who owns the design?
Unless there is an agreement to the contrary the artist will own the physical designs and copyright in them. No one can reproduce the designs in three-dimensional form without the artists consent[iii]. Even once the work has been realised the artist will retain ownership of copyright in the designs, and copyright in the completed work. The commissioner will have property rights in the actual work.
Artists should read the terms and conditions of any call for expressions of interests or submission brief as these may contain a clause which grants ownership or copyright in the design to the commissioner.
Artists should note that even though they own the copyright in the final section 65 of the Copyright Act 1968 (Cth) allows for the making of certain reproductions (such as photographs, films and paintings) of sculptures and works of artistic craftsmanship that are permanently situated in a public place.
Subject to condition clauses[iv]
Often commission agreements for a public artwork will be subject to certain conditions. The most obvious is subject to the commissioning party approving the design. It is important that the terms of the approval are clearly framed. Firstly, it needs to be clear who needs to approve the design and who has the authority to do so. Are there different levels of approval required or is community consultation necessary? If community consultation is required, you need to ask who is “the community” and, who has the final say? Also, the approval should be required to be in writing and by a particular date.
Sometimes there may also be a clause, which provides that the agreement is subject to receiving funding or finance or the approval of an engineer. Artists should approach such agreements with caution as they be required to invest time, creativity and possibly money into a project that for some reason may fall at the last hurdle.
An artist will have moral rights in the public artwork they create. These rights will continue to exist even if the artist has assigned the copyright in the artwork or design to the commissioner. Moral rights require that the artist be acknowledged and identified as the creator of a particular work unless it is reasonable not to do so. Also an artist is entitled not to have their work treated in a derogatory fashion. This means that an artist’s work cannot be materially altered without their consent. In the case of public artworks this may involve moving them from their original site or adapting them to suit changes to their surrounds. It may even involve repairs to the work. Artists should seek to include a clause in the commission agreement, which requires the commissioner to give the artist first opportunity to conduct any repairs. An artist can consent that they will not enforce their moral rights. This must be in writing. Artists who are asked to sign such a consent should give careful consideration to the implications.
The parties involved in the project need to carefully consider insurance for the work itself and public liability insurance. Who bears the risk and cost of insurance for the work will depend on a number of factors. Firstly, where the work is to be realised. If it is in the artist’s studio it is likely that the artist will be required to bear the risk and cost. However, if it is on site this will fall to the commissioner. There are also questions of who bears the risk after installation. Public liability insurance covers the insured party against claims made against them for injury, death or property damage. Artists should be insured in any place they work. However, some commission agreements seek to make the artist responsible for public liability insurance after the work is installed. Artists should be wary of agreements requiring this.
In many cases the root of the problem is the absence or inadequacy of a written agreement between the artist and the commissioner. See Arts Law's sample Public Arts Commission Agreement.
[i] Watts, Oliver Public (Art) Liability Art+Law September 2000; Beal, Elizabeth Public Art Guidelines for Artists and Commissioners Art+Law June 2001; Fowler, Marcus Sculptures in Public: Protecting Your Work Art+Law March 2003 all available online at www.artslaw.com.au; Code of Practice for the Professional Australian Arts, Craft and Design Sectoravailable on the NAVA website at www.visualarts.net.au/advicecentre/codepracticeprofessionalaustralianvisualartscraftanddesignsector.
[ii] See Beal, Elizabeth Public Art Guidelines for Artists and Commissioners Art+Law June 2001 at www.artslaw.com.auand Code of Practice for the Professional Australian Arts, Craft and Design Sectoravailable on the NAVA website at www.visualarts.net.au/advicecentre/codepracticeprofessionalaustralianvisualartscraftanddesignsector.
[iii] ss31(1)(i) and 21(3) Copyright Act 1968 (Cth).
[iv] See Beal, Elizabeth Public Art Guidelines for Artists and Commissioners Art+Law June 2001 at www.artslaw.com.auandCode of Practice for the Professional Australian Arts, Craft and Design Sectoravailable on the NAVA website at www.visualarts.net.au/advicecentre/codepracticeprofessionalaustralianvisualartscraftanddesignsector.
[v] Fowler, Marcus Sculptures in Public: Protecting Your Work Art+Law March 2003.
[vi] Watts, Oliver Public (Art) Liability Art+Law September 2000.