Public Art Works
Adopted by the CAA Board of Directors on October 31, 1987; from the Recommendation by the Sub-Committee on Public Art of the Artists’ Committee of the College Art Association of America.
Public art works, that is works commissioned from an artist by a public agency for placement in a public place, are a long-standing artistic tradition and important to artists and the public alike. This statement addresses a number of matters involving the commissioning of a public art work which are of concern to artists, and makes a number of recommendations to artists and to commissioning agencies.
As a general rule, the contract for the commission of a public art work is prepared by the commissioning agency. Many artists believe that they have no alternative but to sign the agreement in the form presented to them. But this is not the case; most agreements are subject to negotiation and change. The committee urges artists to consult a lawyer and, if possible, to have the lawyer prepare a contract. A model agreement, prepared by the Committee on Art Law of the Association of the Bar of the City of New York, is a useful guide. Other model contracts may be found in the legal literature. These model agreements may be helpful to the artist’s lawyer; artists should not attempt to act as their own attorney.
The Selection Process
The commissioning agency should designate a selection panel comprising art professionals of national and regional renown, at least one member of which should reside outside the region. The administrator of the project should be an experienced art administrator. Members of the public should participate in the selection process, and every effort should be made to bring the proposed commission to their attention. In this connection, public exhibitions of the maquette and drawings should be planned and held at the earliest possible stage of the project in order to elicit reactions which may be considered by the artist.
Contracts and Fees. Proposals from artists should not be solicited by a commissioning agency until the requisite funds are available for the project. A separate contract for a proposal by the artist may precede the selection of the commissioned work and the award of a contract for its fabrication and installation. Where a commission is awarded through a competition and proposals are sought from a number of artists, the selection process should be made clear to all artists from whom proposals are solicited. All artists should be given an opportunity to visit the site at the expense of the commissioning agency. Where there is no competition and one artist is asked to submit a proposal the payment to the artist for the proposal should be 10% of the total commission, payable upon submission of proposal. Where there is a competition this 10% fee should be divided among the finalists.
Proposal Submissions. All materials submitted in connection with a proposal should bear the artist’s copyright. As slides, transparencies and blueprints are adequate for the commissioning agency’s permanent record of the proposal, the proposal agreement should provide that models and drawings submitted by the artist remain the property of the artist subject to an option to purchase by the commissioning agency at a separately negotiated price.
Budget. In making a proposal, the artist should be careful to insure that the amount paid for the commission will cover all the artist’s expenses and allow a reasonable profit. All expenses should be carefully estimated in advance in a budget which includes, among other things, costs of fabrication, transportation, studio assistants, insurance, storage, legal fees, and other expenses including general overhead.
The Contract for the Commission
Among the provisions of a contract for a commission to which special attention should be given are the following:
Title. The term “artist” and not “contractor” should be used to refer to the artist in all contracts.
Copyright. Commissioned works should be copyrighted by the artist. The contract should provide for retention of the copyright by the artist. A license under the copyright to reproduce the work in two-dimensional form for non-commercial purposes should be granted to the commissioning agency with the proviso that the artist’s consent, which may not be unreasonably withheld, must be obtained for all reproductions of the work. Artists should freely grant licenses to reproduce the work for nonprofit educational or scholarly purposes.
Removal or Relocation. Provisions for removal or relocation are not recommended. Commissions for both permanent and temporary works are to be preferred instead. In the event that a removal or relocation provision is included in a contract, however, the provision should clearly define the procedure to be followed in deciding whether to remove or relocate, as well as the procedure for the selection of a future site.
Maintenance. The artist’s responsibility for design, structural or fabrication flaws should end not later than one year after acceptance of the work by the commissioning agency, after which time the commissioning agency should hold the artist harmless against all claims. After acceptance, maintenance and repair of the work should be the responsibility of the commissioning agency, which should follow instructions provided by the artist. The artist should have the opportunity to make or supervise repairs or restorations at a reasonable fee during the artist’s lifetime.
Cancellation. Provisions for cancellation of the contract, if insisted upon by the commissioning agency, must be carefully negotiated. After approval of the maquette or plans by the commissioning agency, the contract should not be subject to cancellation except where the project cannot be completed by the artist or the artist’s assistants after the artist’s death or total disability.
The contract should provide for arbitration of all disputes in accordance with an agreed upon arbitration mechanism.
Penalties for breach of contract should apply equally to both parties. The artist should have the opportunity to cure any alleged breach upon written notice and within a reasonable time.
Schedule of Payments. Payments should be scheduled in such a manner as to provide funds for costs of fabrication and other costs.
Preparation of the site should be the responsibility of the commissioning agency, which should follow the artist’s specifications.
All installation costs should be borne by the commissioning agency. Installation should be under the supervision of the artist with appropriate reimbursement for expenses relating to the trip to the site.
Approval of Engineer. In appropriate cases, the commissioning agency should retain, at its expense, an engineer to approve specification drawings and to approve the installation on behalf of the agency.
“Commissioning a Work of Public Art: An Annotated Model Agreement,” The Committee on Art Law of the Association of the Bar of the City of New York Columbia–VLA Journal of Law and the Arts, 1985.
Published proceedings of a Conference on Public Art available from City of Santa Monica Arts Commission, 215 Santa Monica Pier, Santa Monica, CA 90401.
Authors and Contributors
Sub-Committee on Public Art of the CAA Artists’ Committee: Sam Gilliam (chair); Cynthia Carlson; Gilbert S. Edelson; Joyce Kozloff; Irving Sandler.