There is a real shortage of published material that authoritatively and comprehensively covers the complex and extensive challenges of commissioning new artworks: conceptual, cultural, ethical, managerial, financial and legal.

A new book, Commissioning Contemporary Art: a handbook for curators collectors and artists, tackles these issues with evident relish, continually triangulating respective perspectives of the artist, commissioner and involved third parties such as sponsors, agents or dealers. Jointly written by art critic and journalist Louisa Buck with art lawyer and curator Daniel McClean, this is not a law book; it is a commission planning and management good practice guide, plainly narrated, and packed full of examples of commissions that went right and wrong.

 The introductory section offers a whirlwind tour of western art history, discussing landmark commissions that were of course contemporary in their day. Subtitled ‘An Ancient and Intricate Practice’, this review ranges from politician Pericles commissioning sculptor Phidias in the fifth century BC to ‘oversee design and embellishment of the Parthenon’ to Dominique and Jean de Menil’s extensive commissioning in the late 20th century, including paintings by Mark Rothko and Dan Flavin’s last work.

 Patrons’ motives always extended beyond ‘mere acquisition’ to embrace ‘propaganda, celebration, commemoration, philanthropy, pleasure’  – and the same holds true today. Whatever the nature of today’s commissions (public or private, large or small, institutional or individual) patrons need to establish a trusting working relationship with the artist to create ‘bespoke’ work. Uniqueness becomes a constant theme throughout: the concept and design of the work, and the commissioning process, need to be tailored to fit each specific project. There is no ‘single way’ of commissioning, no off-the-peg model.
 The chapter ‘Why Undertake a Commission?’ covers key practical and ethical considerations for commissioners and artists. Patrons need to establish a sound relationship with the artist, whose primary concern should be whether the proposed commission suits their practice. Illustrative quotations from authoritative figures are peppered throughout the guide (most having been specifically given to the authors for this publication). Tate director Nicholas Serota: ‘Often we want to work with artists who don’t produce commercial product, and therefore commissioning is the only way they are going to be bringing the work into existence.’ Antony Gormley: ‘Don’t do it unless you passionately believe in it. And avoid making trophies for large corporations, because that’s not going to do you or them any good.’ 

 ‘Who Commissions Today and What?’ explores the public realm and institutions, private foundations and collectors, and commissioning agencies. Significant examples from around the world are cited: on-site and off-site commissions, moving images, artists’ residencies, permanent and temporary projects, commercial and corporate developers, commissioning for the home, environmental regeneration and social spaces, and commissioning for non-art events such as the Olympics. Francesca von Habsburg of Thyssen-Bornemisza Art Contemporary: ‘Finding new ways of sharing art and providing means to facilitate projects that otherwise would never see the light of day appears to be the task of the private sector. The private realm – whether one defines it as collecting, commissioning, patronage – in all its incarnations, it is about taking risks, about pushing the margin a little further.’

 ‘Making It Happen’ is artlaw oriented, commendably avoiding use of unexplained legal jargon and stressing at the outset that there is ‘no single commissioning blueprint’. A linear approach is taken via subsections covering the following: approaching and selecting the artist, developing the proposal, securing the finance, reaching an agreement, production and installation, publicising and documenting. A guiding principle for all involved is to create sound documentary records of contractual negotiations and eventual agreements: ‘Contracts are essential. Everything must be written down with the artist before we start working. We know what we can offer, and they need to know how much we can pay them.’ (Christine Van Assche, chief curator at Centre George Pompidou). 

 The ideal contract is ‘a document of trust rather than one of mutual suspicion’, sufficiently flexible to give the commissioner a reasonable degree of control – over production costs and timescales, for example – and the artist freedom to create. Large and complex commissions, often extending over long periods of development and execution, may require ‘several contracts interlocking’ between financiers and commissioners, site owners and property developers, artists and their fabricators or other subcontractors. Sometimes a preliminary contract is needed to deal with the development of the artist’s initial ideas or proposals, followed by the actual commission contract for the finally agreed artwork. Anish Kapoor: ‘If you are going to do a commission, then get a good lawyer and make sure that you have a reasonably watertight contract. Otherwise what tends to happen is that you get swept up in the enthusiasm of all the parties and then you end up with your fingers burnt.’
 A checklist of essential contractual elements is explored in detail, including: creation/description of the intended work, artist’s fee/s for execution of the commission and/or sale price for transfer of ownership, production and installation, maintenance and insurances. Important reference is made to a legal requirement in the EU that all public commission projects undertake prior assessment of risks and healthy and safety issues (following EU Directive 92/57/EEC implemented in the UK via the Construction Design and Management Regulations). Richard Wilson: ‘The easy bit was making the actual work. The difficulty was in confronting the bureaucracy. We spent almost two years going through all the legalities and the regulations, and it was only in the last four months that we actually put the work in place.’

 ‘The Commission Thereafter’, dealing with what happens next, amplifies maintenance and related insurance issues raised in the previous chapter. Discussion of a work’s afterlife is often neglected by both the commissioner and artist through understandable focus on creativity, installation and ownership. Key afterlife issues should be addressed at the outset: maintaining and exhibiting the work, legacy and evaluation, intellectual property and artists’ rights, decommissioning, resale and recoupment. Valuable food for the thoughts of everyone contemplating involvement in a commission is suggested: how long the work is intended to last, whether it is unique or one of a series or edition, and retention of ownership by artists of their preliminary designs, maquettes, models. Jeff Koons: ‘I love the responsibility of the maintenance or preservation of art, I want to protect it.’ Kapoor: ‘Intellectual property rights are the most important thing! Make sure they are properly enshrined [in the contract] and never let go of them!’ 

 This handbook makes a unique and valuable contribution to knowledge and understanding of contemporary art commissioning practices and represents a worthwhile investment of support by the UK’s National Lottery and Arts Council England. Its non-legalistic approach – ie not focusing on legal frameworks operating in specific countries, as law books must do – enables good guidance to be offered to artists, curators and collectors worldwide. Beautifully designed, printed and bound in China with strikingly orange hardback covers and a bookmark ribbon, and offering an excellent table of contents and full index to aid searching, the guide lends itself to full linear or selected topic reading. The work reflects and benefits greatly from its authors’ knowledge and sympathy with contemporary art practice. Their overall message is that commissioning is not a legal process, but that the law provides essential facilitation tools, which can and should be used creatively.

Louisa Buck & Daniel McClean, Commissioning Contemporary Art: a handbook for curators collectors and artists, Thames & Hudson, 2012, 320pp, hb, £18.65.

© Henry Lydiate 2012

This article is from the Artlaw Archive of Henry Lydiate's columns published in Art Monthly since 1976, and may contain out of date material. The article is for information only, and not for the purpose of providing legal advice. Readers should consult a solicitor for legal advice on specific matters. Artists can get free online legal information from Artquest.