PUBLIC COMMISSIONS:  The Babel of Tower

Joshua J Kaufman © 2004

            From time immemorial works of public art have been commissioned by rulers to glorify themselves or to fill temples with representations of the Gods.  There has always been a tension between those commissioning the works and the artists who have created them.  The tales of the battles between Michelangelo and Pope Julius II or Da Vinci and Rembrandt’s trials and tribulations with their benefactors are legendary.  When a sculptor or other artist, who creates art on a monumental scale, gets the hoped for phone call that they have won the commission for a large work to be installed in a plaza, or a lobby, or an airport, or a traffic circle their initial feeling is of excitement, but later may prove to be a headache.

            The contemporary artist who receives a commission is usually faced with a different set of problems which can be mitigated, if not prevented, by proper upfront planning and negotiation.  Most of the problems today are not based on the megalomania of the commissioning party or the ego of the artist but rather on misunderstandings that inevitably come from two very alien worlds being brought together with money and time pressures added to the mix.  Today, cities and real estate developers are the largest commissioners of monumental artworks.  Cities commission artist's works in order to enhance the beauty of the city and their public places, and developers to enhance their property so that they can obtain higher rents.  In some situation developers are required to provide art by local jurisdictions who have "One Percent for Art" ordinances, but more likely as a give-back on zoning deals.  Developers are often allowed to exceed zoning capacities for a community give-back, which may be pocket-parks or moderate priced housing, but most often it is public artwork.

            The process often begins with the city or the developer hiring an art consultant who undertakes some form of juried competition where artists submit drawings or plans, based on the site and the required guidelines.  (At the very early stages, fees are often not paid to the artists; however, in properly run competitions, after the first cut-off when more detailed plans and maquettes are requested, artists are usually compensated for their efforts.)  A Term Sheet or Letter of Intent is a document where the overall time-frame, description of the nature of the work and the budget are articulated, agreed to and signed.  The artist's plans are then usually made a part of the permit process.  Their designs are presented to the zoning board, fine arts panels and the like, and become part of the overall approval process granted for the new building, terminal, train station, park, etc.  At this point (if not sooner) after a work has been accepted by the developer or the city and it has gone through the various zoning and public hearing processes a full contract is presented to the artist. 

            Next comes the part of the process that I like to refer to as the "Tower of Babel" where there are many people involved and no two speak the same language.  I can not begin to tell you how many times the first drafts of a contract an artist sees is the developer's standard builder/subcontractor agreement where using the word processor function of “search and replace” replace the term Electrician or Plumber with Artist.  The artist is expected to sign this document with no questions asked.  Woe be the developer who submits such a contract or the artist who signs one.  It is the making of a disaster.  It is imperative that both parties understand the framework in which the other works.  The creation of a monumental piece of art and its installation is not the same as laying pipe, wire or pouring concrete and cannot be treated as such by the developer.  An artist must realize that notwithstanding the creative process there are certain restrictions that are inherent in a building project where works must be on-site on time; must conform to the agreed to plans; that there cannot be deviations for artistic reasons without clearing them with the developer. 

            Two paramount issues that artists need to appreciate are budgets and engineering.  All too often artists, from the novice to those who have been in the business for 50 or 60 years, don’t understand the engineering concepts of taking a small work, enlarging it and having it placed in an outdoor environment. When a work is placed outdoors it is subject to the elements, wind, traffic, acid rain, pollution, cars, tornadoes, hurricanes and everything else that man and Mother Nature can throw at it.  As such, the engineering components of an outdoor piece are critical and often beyond the scope or skill set of the average artist.  It is imperative that they either have an engineer brought aboard their team (and budget for it), or that these issues are raised early on and the developer who as a builder has these kind of resources, makes an engineer available to the artist.  Unfortunately, the builder and the artist often do not deal with the issue until the insurance company who the builder wants to insure the piece brings in engineers who test the piece and refuse to insure it because of various structural problems that are not readily apparent to the builder or the artist. 

            Artists have never been known for their financial acumen, but even those that are good business people, and know how to set a profitable price for gallery sales when it comes to creating an appropriate "construction budget" that will span 6 months to several years involving subcontractors, cost of materials and transportation are usually not properly equipped to handle these tasks.  Unfortunately, I would say that the majority of the artists who work on public art commissions do not end up making any money and in fact it is not uncommon for them to lose money.  They simply do not have the accounting shrewdness to predict and manage the costs of a construction job.  This is a highly-developed skill and people who are knowledgeable in the area should be brought in to assist the artist.  Unfortunately, this almost never happens.  If an artist is creating an oversize painting or a large canvas or tapestry, it might be less critical than if they are creating a piece that’s going to be enlarged, cast in bronze or carved in marble and transported, stored, and installed.  Contingencies for cost overruns, whether its the artist’s responsibility or not, need to be addressed in the contract as well. 

            Another issue of concern that is fairly universal in public works is the ownership of the copyrights.  The preliminary drawings, particularly if the artist has any reputation can have significant value, as can the maquettes (models).  Unless the preliminary drawings have been specifically identified and paid for, they usually remain the property of the artist.  A successful public work may become an icon and the sale or reproductions are quite possible.  The exploitation of reproductions of the public work can also have great value.  Therefore, in addition to the emotional need of the artist to retain ownership of their copyrights retained those rights can have significant financial consequences.  Developers feel that they are paying for the piece and want to own all copyrights and reproduction rights even if they have no intention of using them or exploiting them.  An appropriate royalty or fee-splitting arrangement between the parties can be worked out.  The developer, building owner or municipality certainly have a need to have unfettered rights to reproduce the work for promotional purposes for the building, for the city, or for the project.  All too often the parties take absolute positions in this area when it is not that difficult to accommodate the needs of both parties.  The issues that arise in public commission are complicated and contracts often are 20 to 30 pages. 

The following are some of the other key issues that need to be addressed:         

            The scope of the service needs to be clearly defined.  Specifically, what are the artists responsibility?  Do they create the works by themselves?  Do they have to deal in a collaborative manner with other artists?  With the builder?  With the architects?  The lines of responsibility and authority need to be clearly established so that turf battles and misunderstandings do not arise.  Additionally, in terms of scope of work, one of the issues that often come up is the issue of installation.  Installing a work can require a very different skill set than creating the work.  It can require dealing with plumbing, foundations, concrete-pouring and electrical work which all need to be coordinated. 

            The timeframe in which work is to be completed needs to be clearly set out.  Milestones need to be defined as payments are often linked to progress on the work.  At what point are the various payments due?  How do you decided whether or not those progress points have been satisfactorily reached? What do you do if they are not reached?  There is usually an up-front payment, one or two payments in the course of the project and usually a payment upon completion.  From the artist’s point of view; they want to ensure that the payments are always such that the artist is never spending their own money on labor and materials and that the final payment represents the artist’s profits.  Therefore, if something goes wrong with the project or if the project is cancelled, for any reason, the artist is never out-of-pocket.  The developer also wants to protect itself from paying for an unfinished work. 

            How do you deal with potential problem areas such as falling behind schedule or being over budget?  What if the artist fails to complete the work at all or in a timely fashion or on-budget, what are the remedies?  Who has the right to complete the piece?  Who has the risk of loss?  Who is responsible if the piece gets damaged or destroyed before completion?  Obviously, there are related insurance costs.  Who will bear the costs?  Who is the insured party?  Who do the insurance proceeds go to in the event of damages or destruction?  Warranties are also an important issue.  How long does the artist warrant the piece will last?  The builder, of course, thinks eternity is an appropriate time-frame and the artist probably wants its liability to end on the turnover of the piece.  Usually, the solution lies somewhere in the middle. 

            Under the Copyright Act there is something called Moral Rights, which define what can happen to an artwork after it is created.  Specifically, the law states that a work of recognized stature must be protected; that it can not be mutilated and destroyed.  Therefore, the issue of Moral Rights needs to be considered in the contract.  The long-term maintenance of the artwork needs to be addressed.  Does the artist gets a right of first refusal for repairs?  At what rated? 

            Tax issues should be addressed.  Who is liable for sale taxes if they apply?  If a municipality is involved there will always be the non-discrimination and other clause that the city puts in every contract.  Even though they are boilerplate clauses and "non-negotiable" they need to be reviewed by the artist to make sure that they can conform and if they can't conform, the city needs to be made aware of that at the outset.  Then, of course, there is the general boilerplate language which people tend to think is not important but it is often the area from which many of the problems arise.  Specifically, areas like governing law, arbitration, and modification to the agreement.  You always have clauses that state the agreement can only be modified in writing and then everybody turns around and ignores the contract and orally make changes throughout the whole project.  Both parties need to be aware that oral modification can and will come back to haunt both parties.   

            All this being said and even with all the potential problems if we look around us we see that there are tens of thousands of magnificent public works.  Yes, they do get built and endure.  With proper upfront planning the multitude of details can be hammered out and the actual process of creation and installation of the monumental work of art can be an exciting adventure centered on the creative process.

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Joshua Kaufman is a partner in the law firm of Venable LLP and General Counsel to the Art Copyright Coalition.  While he is based in Washington, DC, his practice is national in scope.  He is also an adjunct professor of law at American University Law School.