The Art of Contract: Public Art Commissions

Written by: Alana Kushnir, Director and Founder of Guest Work Agency
In this series of legal-themed articles, art lawyer and founder of Guest Work Agency, Alana Kushnir, shares useful tips on contracts which regularly arise in the art industry. From public art commission contracts to artwork sales terms and conditions, here are some suggestions for you to consider before signing a contract.

Suggestion 1: Map Out All of The Parties Involved

When it comes to public art, the traditional commissioning relationship between commissioner and artist rarely occurs today. Not only will the commissioner and artist be involved, but so too will other individuals and stakeholders who bring the artwork to life. Parties to the contract could be the artist’s gallery, the architect of the site, the developer, the project manager, the artwork fabricator or the guarantor, for example. There may need to be more than one contract in place to address all of the parties involved. Who is engaging the fabricator? It may be the artist, but it may also be the commissioner. And who is paying the artist? Is it the architect? Or the developer? Or another party altogether? You should consider not only who is involved, but what each party is responsible for and how a contract can be used to hold each party accountable for their obligations under the commissioning arrangement.

Suggestion 2: Modify the Draft Contract to Suit Your Artwork

These days every public art commission arrangement is different. Not only because the parties may be different each time (as discussed above), but also because public art is specifically produced for a predetermined public setting. Although this may be obvious to an artist or a gallery, you should bear in mind that the strict requirements of an artwork’s specificity may not necessarily be obvious to others you are contracting with who do not generally operate within the art industry – a property developer for example. They may not be aware of your moral rights. They may not understand that such legal rights may affect how the work is to be taken care of once it is installed (to that end, do you?) Another way to think about it is that a contract for a site-responsive artwork must be ‘artwork-responsive’. You should be able to modify and negotiate the terms of the contract before the agreement is signed. Have you been sent a contract template in an unmodifiable form, such as a PDF? If you have, then you should ask for, and work from, an editable version.

Suggestion 3: Consider the Lifetime of the Artwork

Public art commission arrangements are also unique from a contractual perspective because they can encompass all (or some) of the varying life phases of an artwork. Beginning with a commission brief and artwork proposal, then to concept and design, onto artwork production and installation and finally, the maintenance and marketing phase, each of these should be addressed in one or more contracts. Each of these life phases of the artwork present a different set of rights and responsibilities for the parties involved compared to, say, an artist producing a domestic-size painting for a gallery exhibition that is then offered for sale. Ultimately, it is important to remember that it is in the artist’s best interests to be involved at every life phase of the artwork. You should consider the contract document as a useful tool – it should operate to ensure that the artist has the right to be involved in the life of the artwork to the extent that they want to be involved.
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the contents of this article are of a general nature only. They are not and should not be used as legal advice