The process of applying and being accepted for a public or private art commission is long and involved but, once it is over, the artist can concentrate totally on his or her artwork, right? Unfortunately, the end of one stage simply means the beginning of another, perhaps not as long in duration but just as – or more – complex. Welcome to the commission agreement.
Some artists draft their own agreements. It makes sense to run such a document by a lawyer, perhaps someone at a Volunteer Lawyers for the Arts organization – they exist in California, Colorado, Florida, Georgia, Illinois, Indiana, Iowa, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Missouri, New Hampshire, New Jersey, New York, North Carolina, Ohio, Oregon, Pennsylvania, Rhode Island, Tennessee, Texas, Washington, Wisconsin and the District of Columbia – or one might contact an attorney whose practice involves entertainment law (the state bar association may offer a recommendation) to make certain that all the salient points are addressed. “I’ve written up my own contracts. I know what they need to contain,” said muralist Richard Haas, who added that he has “saved a lot of money over the years by doing this part of the job myself.”
In all instances, however, artists should be familiar with the basic concepts of an art commissioning agreement.
- The artists (or artists, if more than one) and the organization, individual or agency commissioning the artwork should be identified at the top. It should be clearly stated that the artist (as an independent contractor and not an employee) is in charge of the design, selection of materials and fabrication of the artwork, how the piece is to be installed and who is in charge of insuring it. When installed, there should be some plaque crediting the artwork to the artist, as well as listing the date of the piece and that the artist retains copyright. The party commissioning the artwork is responsible for obtaining any and all licenses and permits, preparing the site where the object will be installed and informing the artist of any laws or regulations that may affect the design of the piece.
- What are the dimensions, materials, subject matter, making processes and finishes of the artwork being created? How will it be mounted, framed, hung or otherwise installed? Where exactly will it be installed? The artist also will warrant that the final artwork has no defects in materials and workmanship.
- The artist should provide a realistic completion date, which may be very specific (June 15th) or approximate, using such language as “on or about” or “by such a date at the latest” or “between such and such dates.”
- The artist should write up a budget, detailing all expenses, using realistic numbers rather than inflated (in order to bilk the commissioning party) or heavily discounted (to seem like a bargain) figures.
- How will the artist be paid? There should be a method of payment, and many agreements employ the one-third rule – one-third on signing the commission, another third when work is two-thirds complete and the final amount when the work is completed and installed — or some variation).
- Even after a proposal is selected, there is an approval process, usually in stages, that may consist of rough sketches, drawings, maquettes. These stages usually are equal to the number of payments, and they also permit dialogue and discussion about the artwork and any modifications that may be needed. However, changes resulting from discussions may increase costs, and those expenses need to be negotiated.Disputes may develop during the process, which may be resolved informally or through the mechanism of mediation or arbitration. A contractual clause covering dispute resolution may keep a commission from being cancelled or the parties hiring lawyers and going to court.
- The person who is negotiating with the artist should have final authority for commissioning the project and approving the designs, as well as accepting and paying for the completed work.
- Often, artists are asked to waive their “moral rights” under the federal Visual Artists Rights Act, thereby allowing their work to be removed or even discarded without their permission. Still, artists may ask that, the owners decide to remove the artwork, it be offered back to them with the artist paying the cost of removal.
- The owners of the commissioned artwork may want to create small or other copies of the piece for promotional purposes, but “artists should resist giving up their copyright,” Chicago arts lawyer Scott Hodes stated, only permitting limited use of the images under separate licensing contracts.
- It is reasonable for artists to warrant the design, fabrication flaws and structural integrity of the materials for a period of one year but not more than that. Manhattan arts lawyer Donn Zaretsky advises artists not to accept any liability for injuries as part of a public art commission. “The commissioning agency should pay all legal fees and judgments,” he said. “I call it the artist-can-sleep-at-night clause.”
- As physical objects, artwork may require regular care or conservation treatments. Artists should provide detailed written instructions on the type of care needed and how often. During their lifetimes, they should be given the opportunity to make or supervise repairs and restorations at a reasonable fee.