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3.3 Artist contract - structure and adaptability
Once the artist has been selected a contract should be drawn up before any work has been started on the commission.This decision is for the benefit of both commissioner and artist - to protect both parties, the integrity of the work, and ultimately enhance the professional working relationship.
Within UK law, legally enforceable and binding contracts can be created without any requirement for legal advice. If you have access to legal aid or a legal department, it would be advisable to consult with them on the content of the contract.In the majority of cases an agreement is legally enforceable where there is sufficient evidence that a commercial offer has been made and accepted.
It is important to have a contract in place regardless of the size or time span of the commission, temporary or permanent.It is good practice to have all your project discussions and agreements in writing, not just to make the deal legally enforceable but to support the project so it can develop without confusion, misunderstanding, or any change of approach that significantly moves away from the agreed terms.
All public art projects are unique.Art form requirements and the role of the artist can vary greatly; therefore there is no set template for contracting an artist. However there are a number of basic points that should always be given consideration in the discussion with the artist towards creating the contract.
The basic structure of a contract (as set out by Henry Lydiate) is:
Origination and fee.
Fabrication, fees and costs.
Installation, fees and costs.
Maintenance, fees and costs.
Ownership, moral rights and copyright.
Origination and fee
For the benefit of both the artist and commissioner it is important at the outset that a distinction is made between the requirements made on the artist to create and freely design, and the actual fabrication of the final work.By placing all focus from the outset on the execution of a final installed or performed piece of art work, it may have a detrimental effect on an artists response and how their innovative ideas relate to the original proposal.
Putting more focus on an origination phase also ensures that the artist and commissioner both have more confidence in the agreement that they are entering into - if for any unfortunate reason the project does not go ahead, the artist will still be paid for the work they have put into the project. At this stage of negotiation both parties need to:
Identify an element of the overall budget which will be the artist's "origination" feethis maybe an overall percentage or a set fee.
What original design/model/site or project specific research material the artist will present for consideration to the steering group/management team/community and how flexible the original brief is.
The date this stage of work will be completed by.
Who owns this work.
A 'global' or total fee to be paid to the artist for carrying out the whole commission work.
The terms of payment.
How many stages the fee will be paid in (in most cases one third is paid upfront to cover the initial design phase (which can include everything from community workshops, research, to piloting or testing early stages of the work); one third once the artist has finalised the design stage and started to create the final piece; and a final third upon completion of the work).
Fabrication, fee and costs
All issues regarding the physical making of the work:
Any materials required and their suitability for the fabrication/production of the work.
Additional requirements relating to the specific project need to be clearly stated (eg. materials are locally sourced, recycled or sustainable).
The completion date.
The fabrication fee, fabrication will have different interpretations depending on the art form, but It should be established who will be making the payment for the costs (the artist as part of the fee or a separate direct payment made by the commissioning body).
Installation, fee and costs
The installation (or presentation depending on the piece) is often where a project is most in danger of failing - ensure the proper expenditure and responsibilities have been calculated and planned. This can sometimes lead to breakdowns in communication and disputes between the artist and the commissioner, so it is vital to treat the installation as a separate stage - consider:
The method and manner of delivery of the completed work
The installation timescale
Site access and preparation requirements
Installation processes, techniques and equipment
Health and safety requirements and responsibilities
Insurance and public liability insurance (artist, commissioner and/or site)
The site responsibilities (landscaping, signage, etc)
The costs for delivery, installation, hire and any insurance requirements
The installation fee (if appropriate) for artist or contractors
The method and manner of payment of costs and any fees
Maintenance, Fees and Cost
It is good practice to discuss from the outset the life expectancy of any piece of work that is intended to be in place for a period that cannot be described as temporary.This can often be the most neglected stage in the contract, not only in terms of financial implications, but also the roles and responsibilities of maintaining the work.If ignored as a real issue this can give rise to disputes and court action taking place at a later date - therefore consider:
The method and manner recommended by the artist (and any additional fabricator) for maintaining the work - the artist should supply maintenance instructions.
Health & safety, fabrication fault, deterioration and vandalism checks. Agree on the frequency of the checks, who is responsible for correcting issues and who meets the cost.
The agreed consultation process with the artist in the event of any maintenance, renovation or removal of the work.
Responsibilities of the site owners and/or owners of the work.
Responsibilities for cost and maintenance.
If applicable any maintenance/consultation fee to be paid to the artist.
Ownership, copyright and moral right
With so many parties involved it can be difficult to ascertain who owns the artwork once completed, and even more so in the following5, 10 or 25 years to come.It is, therefore, important that when making the agreement on maintenance the same is done for ownership of the work and a document of ownership is drawn up between:
The artist (even though they do not own the site)
The commissioner (even though they do not necessarily own the site)
The site owner (even if they have not paid for the work or installation)
The funder (even though they do not own the site)
Other parties, including the community the work is installed in
Other issues to take into consideration are the artist's 'moral right' to the work and protecting its reputation against any derogatory treatment that might take place within the art work's life span. This must be taken into consideration when negotiating future maintenance and ownership of the work. In terms of copyright the artist retains the rights to reproduce the work in 3 dimensional form. This is important when you have cases of work being reproduced in other sites, either by the artist or by another party. It is good practice to discuss the copyright of the work and it's implications from the outset of the project.
Therefore in practical terms the written legal agreement should, at least, include the following check list (detailed contract advice for your specific project should be sought from the links below):
Names, addresses and definitions of the parties.
Details of the commission and the artists brief.
The schedule deadlines (eg. design and interaction periods, interim meetings, delivery of work, installation, completion event).
The responsibilities of the artist.
The responsibilities of the commissioner.
Insurance, professional indemnity and public liability requirements.
Fees, costs, payment schedules and methods of payments.
Defect warranty and repairs.
Permissions - such as planning or performance license.
Ownership of work, copyright and moral rights.
Maintenance obligations and agreement.
Relocation of artwork, or change of instruction.
Termination of agreement.
Disputes and arbitration procedure.
Agreement and signature of both parties.
For further information and advice on artist contracts see: