Art in public spaces

What does the term "public art" mean to you?

The fourth plinth on Trafalgar Square has seen a huge variety of different things temporarily located on it, all of which are pieces of public art. Public art, though, embraces a far wider array of things than one might imagine – inscriptions on a building, ornate entrance gates, street signs, even bollards as well as the more conventional paintings, light installations, and sculptures. Indeed, the Tate defines public art as:

“…art that is in the public realm, regardless of whether it is situated on public or private property or whether it has been purchased with public or private money.”

The growing value and importance of public art can be correlated to the general public’s increasing appetite for spaces imbued with cultural and artistic value. This has been driven, in part, by the recent placemaking activities of large urban landowners in giving particular emphasis to the creation of exciting areas to live, work, socialise, and relax with public art as an essential component.

Sculpture in the City, an art and architecture exhibition in the public spaces of the City of London, is a fantastic example of this trend. The exhibition is orchestrated by the City of London Corporation but is, in part, funded by local landowners and landlords as well as by financial contributions from various developers undertaking projects in the City.

Whilst the increase in public art as part of the development process clearly enhances our public spaces there are, however, a number of practical and legal considerations that should be taken into account by landowners who are either considering commissioning or required to contribute towards the cost of installing and maintaining public art.

Whilst the increase in public art as part of the development process clearly enhances our public spaces there are, however, a number of practical and legal considerations (known as art law) that should be taken into account by landowners who are either considering commissioning or required to contribute towards the cost of installing and maintaining public art.

Commissioning the artist

As a first step, it is important that an appropriate artist is identified.  Not all artists create work that is appropriate for wide public consumption; some artists set out to provoke and/or shock rather than to please. If the public art opportunity is put out to tender, a careful and consistent vetting process should be adhered to. The criteria for assessing applications should be clear and made available to all artists wishing to participate, whilst the brief for the commission should clearly identify the space to be filled, the envisaged medium (e.g. mural, sculpture, or video art – although this could be left entirely to the artists’ discretion) and the intended audience. If the commission is confidential (either in terms of marketing or otherwise) a non-disclosure clause should also be included in the commission agreement.

Agreeing the contractual obligations

Once the artist has been selected it is crucial that the commissioning party (in this article referred to as the landowner) and the artist enter into a formal contract setting out what is expected of the artist.

Particular consideration should be given to how the intellectual property created by the artist is to be dealt with. For example, the commissioning landowner may wish to use the artwork at the centre of its own marketing campaign, emblazoning the image on all marketing materials and seeking to exploit the artwork to its fullest potential. In this scenario, it will be important that the contract assigns the copyright and any other intellectual property rights such as design rights in the artwork to the landowner.

It would also be wise to ensure the artist waives their moral rights in the artwork. Moral rights give artists the right to be identified as the creator of the artwork, to object to any derogatory treatment of the artwork, and to object to any false attribution. If these moral rights are not waived and the artwork is not well received, or the landowner does not keep up with the repair and maintenance of the artwork, the landowner may not be able to easily remove or destroy the artwork at a later date or maybe forced by the artist to undertake remedial repairs.

Depending on the nature of the commission, it may be necessary to ensure that the artist agrees to assist should the art be moved, loaned, or placed in storage at a later date and the contract should specify the input (if any) that may be requested from the artist in such a scenario.

Planning

Any sizable outdoor public art installation will, in all likelihood, require planning permission and so the timing and cost implications of this must be considered. The planning process is not always straightforward and public art installations may require public consultation exercises. Alternatives might be worth considering in case a planning application is rejected. Understanding a local authority’s adopted policies and planning guidance should help smooth the planning process. Fortunately, since the publication of the National Planning Policy Framework in 2012, the promotion of ‘cultural well-being’ is considered a vital component of ‘sustainable development’ and the Planning Practice Guidance encouragingly states:

“Public art and sculpture can play an important role in making interesting and exciting places that people enjoy using.”

If planning permission is granted for the art then there are likely to be a number of conditions that have to be complied with (covering issues such as installation and ongoing curation). All relevant parties – artist, developer, and landowner – need to be happy with any conditions and what they will entail before the planning permission is implemented.

Public liability insurance

An intrinsic characteristic of public art is that the public are able to interact with it outside of traditional art spaces. It is unlikely that public art will be signed with the usual “do not touch” – it is more likely that people will be encouraged to touch and even sit on the art itself. Whilst it is hoped that the artist will have considered any possible physical interaction when designing and choosing the materials to be used, the possibility of physical interaction brings with it the need for public liability insurance. The parties will need to agree who is responsible for ensuring the public art and the local authority, in particular, is likely to seek an indemnity should any liability fall on it. Any insurance that is put in place should cover not only the time that the art is on display but also the period after its removal during which legal claims are capable of being brought.

Repair, maintenance, and damage

It is important to agree who will be responsible for the ongoing maintenance of the public art (e.g. lighting and cleaning) as well as any repair (should it be damaged or fall into disrepair), and the extent to which any financial contribution toward such costs is to be made or shared between other parties. The extent to which the public art may be repaired or restored may be linked to the insurance cover in place and, in particular, whether it is economic to affect a repair. Equally, careful consideration should be given to who is to conduct the repairs, and the extent to which the artist is to be obliged to assist, and the extent to which repairs may be carried out by agreed reputable contractors.

Security and theft

Given that the work may be of considerable value and will be installed in a public place, security should not be overlooked. The placement of the work may determine the level of ongoing monitoring that has to be provided. Provision of security can amount to a significant cost. For example, work such as that produced by the artist Banksy may need to be protected by a Perspex screen and/or physical presence. The prospect and implications of theft should be considered carefully and will vary depending on the nature of the art. In particular, what are the landowner’s obligations if the work is stolen and cannot be recovered, how should any insurance proceeds to be divided, and can the landowner be required to recommission and replace the work?

The commission and installation of public art is not straightforward and will require a clear, comprehensive, and well-documented agreement between the parties as to their respective obligations and liabilities, many of which may be specific to both the nature of the work itself and the chosen location.

If you’re an artist with public work and wanting to secure a commercial contract regarding its ownership, repair, and maintenance or damage liability, Boodle Hatfield can help. We provide legal advice for artists and collectors across the UK.

This article first appeared in Accountancy Age in 2017.