March 2015 - Provisions for Public Art Contracts

Claire Silverman, Legal Counsel, League
Although public art is definitely not a new concept, the focus on the important role it can play in “placemaking”1 may make acquiring and incorporating public art in public places a topic of interest in municipalities that don’t have much experience in that regard.
While Wisconsin’s largest municipalities have established local governmental bodies tasked with developing and administering a public arts program,2 most municipalities have not created such a body. For municipalities that are interested in encouraging and finding ways to support and fund public art, the benefit of creating such a body is that it can help the municipality better understand the communities’ goals and purposes in securing public art, and develop policies and programs that can help the community achieve those goals.3
In municipalities with local arts boards, the board typically has developed standard contracts and enters into the contract with the artist or donor. For those municipalities without a local arts board, this legal comment highlights some of the basic, important provisions that are typically included in contracts for public art. For more information on how these provisions are specifically crafted, it’s helpful to look at sample documents.4
The following list is not intended to be exclusive.
Contracts governing public artwork typically contain the following provisions:

1. Retention of artist/Scope of work/Location. This section describes the artwork and where it will be located and whether permanent or temporary.

2. Design process and approval for changes in design. This section typically is included in contracts for commissioned artwork. It describes the design process and requires that changes in design be approved by the parties.

3. Timeline for development of art and installation.

4. Price and payment schedule.

5. Warranty Against Defects; Warranty of Title. This provision typically warrants that the art will be free of defects for a certain period of time and warrants that the artwork is the artist’s original work and that the artist has the ability to convey the rights in it to the municipality.

6. Artist as independent contractor. This provision establishes that the artist is working as an independent contractor and is not a municipal employee.

7. Ownership of artwork. This provision specifies who owns the artwork. Typically this is the municipality, but may not always be the case, as, for example, in the case of a temporary loan.

8. Copyright. This provision specifies who owns the copyright and who can authorize and own derivative works. Ownership is different from copyright which is typically retained by the artist. It’s important that the contract specify who owns the copyright and who can reproduce the artwork, in what ways and under what conditions.

9. Responsibility for site preparation/installation of artwork. These provisions specify who bears responsibility for preparing the site for the artwork and who bears responsibility for installing the artwork. In the case of major construction projects requiring services (e.g., architects, engineers, landscape artists, excavators), the contract should specify what each of the parties bears responsibility for.

10. Responsibility for Insuring Art/Risk of Loss. Typically, this provision makes the artist responsible for insuring or bearing the risk of loss from design through installation and then, after the artwork is accepted, places the responsibility on the owner or municipality.

11. Acknowledgement requirements. This provision often requires that the municipality have a plaque in proximity to the artwork identifying the artist or that the artist, in showing the artwork in his or her portfolio or other display, acknowledge the municipality as the owner of the artwork.
12. Liability and Insurance. These provisions typically include indemnification and hold harmless requirements and establish who bears responsibility for insuring the artwork at particular times.
13. Compliance with applicable laws and regulations. This provision requires that the artist and any contractors working with the artist maintain necessary insurance and follow all applicable federal, state and local laws.
14. Maintenance and Conservation. This provision details what kind of maintenance is anticipated and who is responsible for maintaining the artwork and repairing if damage should occur.
15. Deaccessioning, relocation, site modification. This provision spells out what happens in the event of deaccession (removal of the artwork), relocation or site modification.
16. .Waiver of artist rights under Visual Artists Rights Act of 1990 (17 U.S.C. sec. 106A). Municipalities need to be aware of the provisions of the Visual Artists Rights Act of 1990 (VARA). Some municipalities require visual artists to waive their rights under VARA as part of a public art contract. The rights conferred by the Visual Artists Rights Act of 1990 cannot be transferred, but they can be waived if the author expressly agrees to such waiver in a written instrument signed by the author. The document must specifically identify the work, and uses of that work, to which the waiver applies. In the case of a joint work of art, prepared by two or more authors, a waiver of rights by one author waives such rights for all authors.

17. Circumstances for termination.
18. Dispute resolution.
Municipalities that are purchasing or borrowing artwork should ensure the contracts governing the transaction contain these important basic provisions. To see how these provisions are treated in different contracts, take a look at the sample contracts referenced in footnote 4.
Contracts 399    

    Wikipedia defines “placemaking” as “a multi-faceted approach to the planning, design and management of public spaces [that] capitalizes on a local community’s assets, inspiration, and potential, with the intention of creating public spaces that promote people’s health, happiness, and well being.”

   2.  Examples of locally established bodies include The Milwaukee Arts Board, a board within the City of Milwaukee’s Department of City Development, which has a Public Art subcommittee, and The Madison Arts Commission which is a commission within the City of Madison’s Department of Planning and Community and Economic Development. Madison Ordinance sec. 33.35.
   3.  Such policies might, for example, establish criteria for reviewing and selecting artwork and locations for public art, establish a framework or mechanism for funding art acquisition and conservation and maintenance of existing artwork, and establish guidelines for accepting artwork on temporary loan or as a donation.
   4. Americans for the Arts,;
   5.  The Visual Artists Rights Act of 1990 (17 U.S.C. sec. 106A) gives the author of any work of visual art the following rights:
       •  The right to claim authorship of that work;
       •  the right to prevent the use of his or her name as the author of any work of visual art which he or she did not create;
       •  the right to prevent the use of his or her name as the author of the work of visual art in the event of a distortion, mutilation or other modification of the work which would be prejudicial to his or her honor or reputation; and
       •  subject to 17 U.S.C. sec. 113(d) which applies when a work of visual art has been incorporated in or made part of a building in such a way that removing the work from the building will cause the destruction, mutilation or modification of work and the author knows, the right to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation, and any intentional distortion, mutilation, or modification of that work is a violation of that right.
VARA provides that the modification of a work of visual art which results from the passage of time or the inherent nature of the materials is not a distortion, mutilation or modification. The modification of a work of visual art which is the result of conservation, or of the public presentation, including lighting and placement, of the work is not a distortion, mutilation or modification.