Promoting a Framework for Public Art Projects: Key Considerations for Embarking on or Participating in a Public Art Commission

In recent years, London has exploded with art for the masses, particularly during the pandemic when appreciation for the arts was temporarily forced into the open air.

From the hopeful motif ‘Great Things Lie Ahead’ created for Caragh Thuring at Holburn House, to the promenading sculpture trail of Mayfair Art Weekend, and even art created by the masses at the National Covid Memorial Wall.

Unlike transactions in the private art world, such as sale and purchases, private commissions and art loans, creating a public art project brings to the fore different demands and complexities, requiring input from multiple disciplines including commercial contracts, property, planning, health and safety and construction. Perhaps due to this, in many cases these projects can proceed with minimal or even no documentation being passed between the parties involved. This may allow collaboration between multiple parties and would not be questioned if everything were to go to plan (including meeting the budget). But this approach can put different actors in an awkward position from a liability and reputational standpoint if things go wrong. Whilst verbal agreements may be enforceable, if there is nothing in writing the level of protection is less and usually opens the door to finger pointing and games of “he said, she said”.

Boodle Hatfield have provided legal advice in relation to a number of major public art installations. Whilst non-exhaustive, examples of us acting on either sides of these projects include representing the street artist, Stik, on his ‘Holding Hands’ sculpture in Hoxton Square, and on behalf of the commissioner, the Northbank Business Improvement District, in relation to ‘The Voiceline’, an immersive artwork experience at the Strand Aldwych (see our press release here).

This experience has enabled us to establish a framework for how to approach such projects. In this article, we aim to provide a model contractual structure to be considered for public art agreements. In our experience this will focus the parties’ minds and contribute to a greater chance of success for the project.

The following should be considered when putting in place agreements that support a public art project:

1. Parties and background

Whilst landowners and artists are usually parties to public art agreements, there may be a range of other participants to include, either as parties to the main agreement or under sub-contracts or other connected agreements.

In many projects there may be an external funder, or often a public authority acting on behalf of a landowner. Parties may be represented by agents, and additional contractors may be required including architects, fabricators, health and safety consultants, insurers and other specialists. Establishing from the start the interaction between these parties is key. If there are only a few persons involved, one contract may be achievable but often multiple contracts will be needed. Anyone entering into these should ensure their obligations are back to back in the respective agreements, so that they are not promising something they cannot deliver. Likewise, the main agreement should designate which parties should be responsible for overseeing all elements of the design, creation and installation of the artwork as well as checking that there is appropriate insurance coverage for all parties. For example, where a commissioner agrees payments with an artist, any separate funding agreement must be in place to support this intention.

Equally important will be to establish in the background to the agreement the relationship between each of the contracting parties and the context to this, so that their respective obligations and roles are clear from the outset. It is important that each party know.

2. Scope

It will be critical for all parties to discuss and agree an exact scope for the installation. This ties in closely with the design element (discussed further below). For an artwork it will often be easier to define a scope with reference to drawings and other visual representations. In addition, it will be key that the scope corresponds with any planning permission that has been applied for or secured (to the extent required).

3. Monitoring, damage, removal or theft

With any art installation that is outside and/or open to the public, there will always be risk of damage, not only from natural events, such as flood or lightning, but also from interaction of its audience where they are able to access the work. In addition to damage, theft is also a risk to be prepared for, as demonstrated by the well-publicised theft in 2011 of a Barbara Hepworth sculpture from Dulwich Park valued at £500,000.

The first consideration will be how to manage this risk. A key factor is the monitoring of the work, and whether this is to be the responsibility of the artist or the landowner/commissioner. It may well be that in public spaces the landowner will already have monitoring systems in place, such as CCTV or cleaning and security staff, whose role can be expanded to deal with the artwork. In addition to monitoring, the parties may wish to agree on additional safety features, such as terrorism cover, flood mitigation, lighting and vehicle access restrictions.

The second consideration, and perhaps more relevant in the context of an agreement between the parties, will be what to do if the worst happens and the artwork is damaged, destroyed or stolen. In this instance, it will likely be important to distinguish between damage that can be remedied and that which cannot. Insurance will likely play a key factor (see below).

In the case of irremediable damage, or even just when the exhibition period comes to an end, the final consideration will be removal of the artwork. The responsibility for this, as well as the ownership of the removed structure, should be provided for. Another question is whether the artwork can be disposed of sustainably.

4. Insurance

Closely linked to the point above is what the insurance should be.

The types of insurance that are likely to be needed in relation to a publically installed artwork include:

• Public and product liability;
• Employers liability; and
• Professional indemnity.

There are at least three factors that need to be considered:

1. a) What are the minimum legal requirements in respect of the insurance the parties need to have? It is a legal requirement to have public liability and employer’s liability insurance, for example.
2. b) What should the level of cover be? This will be a commercial decision, and factors such as the value, scale, popularity and involvement of the public and third parties should be considered.
3. c) Whose responsibility should it be to maintain such insurances? It may be that the artist will want the landowner or public authority commissioning the work to take the brunt of this, whilst on the other hand, the commissioners will likely want assurance of the artist’s liability if anything were to go wrong with the work. The insurance position may also need to fluctuate depending on the point in time. For example, insurance cover during the construction period may well differ from that during the exhibition period. It may also be that others involved with the artwork but not party to any contract, such as building subcontractors, should be required to maintain a certain level of insurance.

The final result may come down to the negotiating strength of the parties and where unclear, parties may wish to seek specialist insurance input and advice.

5. Ownership and moral rights

Artists will likely be familiar with the need to protect the intellectual property they hold in their artwork.

With public art, as with more traditional types of art, the artist (as the creator) will own these rights unless any contract states otherwise. An outright assignment of intellectual property rights by the artist is less common, so it is likely that any contract will simply confirm the artist is the owner of intellectual property subsisting in the public artwork. However the other parties to the agreement may well request a licence in relation to these rights. This licence may allow them to use copyrighted work as they wish, for example in order to create promotional material. The scope of the licence will likely need careful negotiation.

There is also the issue of moral rights. These are additional rights and protections afforded to an artist who has copyright in a work that relate to non-economic interests, including:

• The right to be identified as the creator of the public art;
• The right to object to derogatory treatment of the artwork; and
• The right to object to false attribution.

Some contracts may seek to exclude these moral rights in order to protect the other parties for inadvertent liability, but artists should consider if they are willing to agree to such provisions (although this will depend somewhat on their negotiating strength).

6. Design

In a structure that is more akin to a construction project agreement, such as a professional appointment, public art agreements can often benefit from a detailed and technical schedule prepared by experts, be that an architect or fabricator.

Aside from the designs themselves, other key elements to attach to the agreement will be the planning application or permission which has or is to be acquired, alongside the design proposal for the works, which may or may not form a part of the planning application. The relevant parties should be obliged to follow and comply with these.

This outline structure is intended to provide a first point of reference for those engaging in public art contracts. It should not be relied on as a substitute for professional advice.