You are an artist. A public body asks you to design an artwork for a public space or place. You are promised payment 'if it all works out'. You are flattered.

How weak was the foundation
I was standing upon. *

You agree and produce designs. These are accepted and you are asked to execute the final work. You do so, the piece is installed and you are paid a fee. Five years later the work falls down and injures someone. You are sued. Are you responsible? (This is not a question set in the final paper of a Fine Art Degree Course nor of an Artlaw Degree Course; but it may happen.)

Deanna Petherbridge's article elsewhere in this issue does not address itself specifically to this kind of problem, but deliberately leaves it for discussion here. What she does raise is no less important and entirely related: the muddy and mystical processes by which public commissions come about; lack of proper or adequate timing and collaboration between commissioner, agent and artist at the outset; vague, indifferent or non-existent consideration of the effects of, or responsibility for, public vandalism; the total or partial absence of adequate maintenance or public safety safeguards during the work's lifetime; serious lack of professional training in art schools or elsewhere (other than through Artlaw) designed to equip artists to deal with such matters; why there is no legislation in this country requiring public money to be spent on public commissions (when many European countries do); the general ignorance or misconception of related copyright and planning laws; fundamental questions for artists concerning their moral rights over work, including the legally enforceable rights (elsewhere in Europe, but not here) to protect their work from mutilation, destruction and abuse, never to be denied authorship, and the right to a fee whenever work is available as a public amenity.

All of these matters are of fundamental importance to anyone concerned for the arts, but few, including artists, appear to care. Perhaps that's not so: maybe most do care, but few have the energy and resources to be actively concerned. Either way, the issues are complex, obscure, ill-researched and certainly not popularly or widely known. Of course, it is only the few who are fortunate enough to be commissioned, but I'd lay odds that all of them would agree with the issues outlined above on the basis of their own experience.

Any art lawyer worth his salt would argue, as I do, that most of the answers to these questions lie in the formulation, agreement and execution of a sound series of contractual arrangements dealing with:

  1. the identification of the agent, the commissioner, the artist and the brief;
  2. the satisfactory negotiation of a commissioned design agreement;
  3. the execution of a full commission agreement;
  4. the signing of a contract of sale (if appropriate);
  5. the establishment of a trust or foundation to maintain and safeguard the work, or of a maintenance contract to do so.

The remainder of this article looks at point 1 in some detail; points 2-5 will be dealt with in the next issue.

The need to establish identities
You that hide behind walls, you that hide behind desks, I just want you to know I can see through your masks. **

a) Agent
Often artists are approached by a third party (i.e. not the commissioner with whom the contract should or will be made), who may be a dealer or a funding body interested in seeing the commission take shape. If the initial approach is made by such a person or body, their identity in the project should be made clear to the artist: they may be acting as agent for the commissioner, or for the artist; or be acting independently of both, wishing to become involved as a true third party in a triangular contractual deal. When acting as agent there may, and probably will, be an agency commission fee payable to them, and this should be clarified at the outset together with all the responsibilities, if any, the agent is to undertake. For example, the agent may be the one who is to perform all the administrative, financial and legal paper work for both the artist and commissioner – from the initial approach to the artist, through the execution of the work, to the responsibility for administering the maintenance of the finished piece. In this situation it is very often not made clear who is to obtain any necessary planning consents and authorities.

Agents may not realise their own true identity and may be disguised as an officer of an Arts Council, Regional Arts Association, Local Authority, public or private company, or gallery, or may be a known collector or dealer, or may simply be a private individual. Merit badges will be awarded for spotting the true agent after asking a few relevant questions, such as:

  • who do you act for?
  • who is paying you?
  • will you receive any reward if I accept the commission?
  • who will pay your reward?
  • who will pay me for the commission?
  • what are your total responsibilities with regard to this commission, if it proceeds?

(Notice the subtle avoidance of the direct question: are you an agent?)

b) Commissioner
The one who is going to pay for the commission will not necessarily also be the commissioner. The money may be provided from two or more different sources (e.g. a Local Authority may commission a sculpture, but funds may have been secured from the Department of the Environment, the Arts Council, the Regional Arts Association, the Local Authority itself, a local private patron of the arts and a local company). This can be very confusing, particularly if one of the funding bodies happens also to be the commissioner or approaches the artist as the commissioner's agent; it could be that all the funding bodies are jointly the commissioner. The time to find out is at the beginning, during initial negotiations – and not five years later (when the piece starts to rust/fade/flake/fall down).

Another difficulty which can arise and be a really practical impediment for the artist is the involvement of architects who have already been briefed to build the structure. Architects often make the initial approach to artists because their brief contains a requirement that artwork be incorporated into the structure or be sited with it. The architect may be acting as agent for the true commissioner, or be acting in his own right as commissioner, and this should be checked. If the architect does not see eye to eye with the artist over the artwork project, it can lead to serious problems of creative freedom – for the artist. Paolozzi, Serra and Kenneth Martin have each commented to me on the difficulties they have experienced in this regard. Each of them advises clear and careful agreement with the architect to secure sufficient, if not total, creative freedom. The details of this agreement should be put into writing so that those ultimately responsible for the control of the commission are able to back the artist in the event of conflict. Without this, the architect is likely to 'pull rank' and gain the upper hand. Serra once said that at a final project meeting with every involved party (the paymaster, the local authority, the fire authority, the planners, the police and lawyers, the actual commissioner, the architects and the artist), everyone except him appeared to have power (usually through the law) to demand their own requirements and modifications. To every point raised by the others, the architect agreed; when Serra stated his requirements the architect would not agree, taking all the other officials along with him. The artwork project was totally destroyed, in Serra's view, and he felt that he'd had no respect or standing in relation to the 'official' roles of the others. Martin believes you should try to secure sympathetic support from an influential top dog who has the commissioner's ear; Paoloza just keeps his eye on everything from start to finish and runs very tight administrative ship. All these points are extremely valuable and should be of great use to anyone involved in this field.

c) Artist
Surely there can never be any doubt about this? Some commissions come about through competitions, either open or limited to a field of invitees. Such schemes can be very confusing because each artist may be led to believe that s/he alone is being commissioned straight away, as opposed to being invited to submit designs, plans, mock-ups, maquettes, models or drawings for selection. The literature setting out the terms of the competition often fails to make this clear; and even less clear whether the invitees will be entitled to a rejection fee if not selected, or to a full commission contract and fee if selected. Even more difficult, the artist's preoccupation with winning the competition may obscure the fact that, at submission stage, s/he has already accepted certain contractual terms and conditions which, if successful, s/he will be bound by but which may not be appropriate.

The responsibility for this lies at the commissioner's door and often reflects a lack of any clear understanding by the commissioner of what the artist is being asked to do, and what the full consequences of the submission of designs for selection/rejection may be. Questions to be asked by the artist in this situation should be:

  • who will make the selection?
  • what is intended to happen to the designs after selection/rejection?
  • will anybody want to reproduce or use the designs after selection/rejection?
  • is there a fee or expenses payable whether selected/rejected?
  • will there be a written offer of commission, if selected?
  • what will the details of the commission be?
  • who is intended to own the commissioned work?
  • who is intended to own the copyright in the commissioned work?
  • who will pay for the commission if it proceeds?
  • how and when will payment be made?
  • who will be responsible for the protection, maintenance and safety of the commissioned work during its lifetime?

d) The Brief
Having got as far as identifying the agent; the payer, the commissioner and the artist, the terms of the commission itself should be clarified in outline before any concrete agreement is entered into. Try this checklist (and if you think some of these are pretty dumb, you should hear some of the dumb problems caused by not checking them):

  • what is to be created?
  • by whom?
  • will designs be required for approval?
  • who will pay me for them?
  • what is the overall time-scale?
  • are you the sole commissioner?
  • are you authorised to act on your own, or do you have to receive approval from another committee, body or person?
  • who are they?
  • who will supervise the commission for the commissioner?
  • who will obtain all legal permissions, including planning authority?
  • where will the work be sited?
  • who is to own it?
  • will the fee cover the creation of the work alone?
  • will there be a separate price paid for ownership of the space?
  • what copyright does the commissioner want?
  • what protection, maintenance and safety arrangements will be made?
  • who will be responsible for insuring the piece from initial delivery of materials to site, through installation, and there after.

All these factors are of fundamental importance to all concerned with the commission and its success. The raising of these points and their clarification at the outset will be of immeasurable benefit to everyone from the inception of the idea to the end of the life of the finished piece (if it has an end – and that should be clarified and agreed, too!).

The argument for getting it right.

You that never done nothin' but build to destroy. You play with my world like its your little toy. **

If anyone has any doubts about the worth of bothering with all this apparent red tape, let them ponder on the parallel position of an architect briefed to design a public building. It is an integral part of an architect's professional education and training to be able to deal with all the matters mentioned here so far, and many more besides, before they can be briefed. It must be a fair comparison to make: the legal, administrative and financial arrangements, responsibilities and duties of an artist commissioned to design and execute a public commission are at least equal to those of an architect similarly briefed.

Unfortunately, no art school or other professional training course for artists specifically deals with these matters, as yet, except for Artlaw Services who currently offer seminars and courses on professional practice and survival; in 1980 Artlaw delivered this kind of information and instruction at thirty-five British art schools, and provided training workshops for practising artists at half a dozen venues throughout England and Wales.

Deanna Petherbridge's article raises this issue, currently a controversial question among art educationists in this country. Should it be the function of art schools to provide an element of professional practice information and training, or should they simply concentrate on the now traditional areas of instruction in creative-ideas and techniques, and some art history? In the light of recent and draconian cuts in part-time art school teaching and the consequent employment of mainly full-time lecturers in most art schools, the old argument that the general involvement of practitioners in part-time teaching satisfies the need to make information and experience of professional practice available to students, would appear to be no longer valid. Some view as dangerous the prospect of non-practising artists becoming almost exclusively responsible for the education and training of the nation's art students.

No-one should feel that the raising of these matters and the expending of time in formulating proper and clear administrative, financial and legal arrangements, is a waste of energy and itself an impediment to the successful securing of public commissions. On the contrary, it will inevitably produce harmony between all concerned and create a sound legal, administrative and creative framework. In the end, this can only give security and freedom for artists to use their best creative skill and judgement to produce valuable and lasting works for the benefit of the public.

Next month, forms of model contracts for designs, commissions and maintenance of such works will be discussed.

© Henry Lydiate 1981
© 1979 Big Ben Music.
** © 1963 M. Witmark & Sons.

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.