Sign Here, Please

The dream of being commissioned to create a public artwork that will generate a sense of place in a community for hundreds of years is no doubt enticing. The world of Public Art projects is highly competitive and, like many things in the art world, rife with hoops to be jumped through and potential pitfalls. (Here I’ll be referencing 3D work, but the discussion holds true for 2D and contemporary media as well.) The effort, time and work put into submitting information for the initial RFP (Request For Proposals) or RFQ (Request For Qualifications) is *very much* only the beginning.

Let’s say you’ve just made the Finalist short list for a public art project… yay! And then you make it through the interview and (bigger yay!) you’ve been selected for the project. Get your clay out and start sculpting, right? Um…nope. Unfortunately. Before anything can happen to move the project forward (including sketches or any further work on your part), there’s “The Contract”… (cue dissonant soul-shredding background music) to be sorted out. If you read the word “contract” and think “oh, ick,” (plus inner eye roll) you’re not alone. But having a straightforward contract that you clearly understand and agree to protects you, the client and the project.

A good contract should clearly specify what is expected of each party involved and when it is expected. It should look out for the interests of both and should outline what to expect if the unexpected happens.

Rule #1

Read the contract – EVERY SINGLE WORD. Highlight problems, things you don’t understand or can’t agree to, then read it again – every single word. If you don’t understand it, don’t sign it until you do. Put on your best patient and well-mannered “professional artist doing something I’ve done a thousand times” persona, remember they want you to do the project (they picked you after all) and it’s simply a matter of sorting out the details so you don’t inadvertently find yourself unprotected in a bad situation.

“Boilerplate” – Sounds Uncomfortable and It Is

None of the following is intended as legal advice, simply things to consider and keep in mind. Every Public Art Project we’ve been part of involves at least one lawyer, if not an entire legal team, on the client side. We do have a lawyer read through contracts and make suggestions when things bog down (and, as a rule, this is a good idea if you’re facing a contract with bunches of legalese you don’t understand). Again, if you don’t understand it, don’t sign it until you do. That can keep you out of a world of hurt if things go south.

Our strong preference is that we use our existing contract as it is specific to public art projects, covers just about any potential possibility that could happen, protects the interests of both sides and we tailor it to each particular project and client concerns (more on this later). It’s far more detailed regarding real world scenarios than any boilerplate contract we’ve faced. When someone says, “it’s our boilerplate contract,” your internal “Danger Will Robinson warning system” should be on high alert. I’m not saying don’t sign, I’m just saying proceed with caution.

Boilerplate is a term for a standard form contract that does not allow for negotiation. You’re told “it’s our boilerplate contract – we can’t change it and we can’t use any other contract due to our legal team.” Every standard contract we have seen so far is heavily skewed in favor of protecting the client with little to no protection for the artist.

A basic query of “boilerplate contracts” on the Mac Dictionary App should make the hair on the back of your neck stand up. A few notable gems: “boilerplate is a contract between two parties, where the terms and conditions of the contract are set by one of the parties, and the other party has little or no ability to negotiate more favorable terms and is thus placed in a “take it or leave it” position… While these types of contracts are not illegal per se (worried yet??), there exists a potential for unconscionability…there is the potential for inefficient, and even unjust, terms to be accepted by signatories to these contracts… Lengthy boilerplate terms are often in fine print and written in complicated legal language which often seems irrelevant (and which, you will often be told, “is just random lawyer-ese, lawyers doing what lawyers do” with the intention of allaying any concerns you may have). The prospect of finding any useful information from reading such terms is correspondingly low. Even if such information is discovered, the signer is in no position to bargain as the contract is presented on a “take it or leave it” basis. Coupled with the often large amount of time needed to read the terms, the expected payoff from reading the contract is low and few people would be expected to read it.”

It’s unfortunate, but you have to read through everything thinking “worst case scenario.” Most of the time, what will happen is you’ll be paid to make an artwork that will delight the clients, the community and yourself. End of story. Keep that in mind while you’re replying to the 482nd email between you and the client about the contract (we’ve been there – over 500 emails for a single project). That said, considering your vulnerabilities and legal exposure is well worth your time. Most likely, nothing bad is going to happen, but what if it did? It’s not a great idea to put your head on a chopping block, cross your fingers and hope for the best.

While you will not be able to re-word or add anything with a standard form agreement, you may be able to line out sections that either don’t apply to your project or that you can’t consent to. For example, if you’re dealing with a multi-billion dollar developer, their boilerplate contracts are often specific to contractors who might be supplying materials, building roads or buildings and the like – these sections may feature wording that is beyond the scope of the project (carrying millions of dollars in liability insurance for a decade after the project is completed may be an appropriate ask for a contractor building a pedestrian bridge, but not for the installation of a sculpture in a park).

I don’t necessarily recommend this, but when faced with boilerplate, we are always willing to walk away from the project if we feel we may be put at risk or if there is no willingness to address our concerns as well as theirs. We’ve not had to walk away from a project, but we would. One major lawsuit against a big company could wipe out many an artist. There is a conversation to be had here about establishing an LLC as a relatively simple first layer of protection, but that is for another time.

Indemnification Clauses

Ai yi yi! These words keep getting better and better. Indemnification is basically saying you won’t sue the other party, their employees, their relatives, friends, dogs, etc. Boilerplate, in our experience, always provides indemnification for the client and not the signatory. Indemnifying the client without you having the same protection is shaky ground at best and it usually involves you paying their legal fees if you got into a legal quarrel. Wait… what? I’m paying someone else’s lawyers to sue me? Generally be a bad move. Simply put, Mutual Indemnification is the only fair way to go. Here’s a brief sample:
Each of the parties shall defend, release, indemnify and save and hold harmless each other against any and all damages to property or injuries to or death of any person or persons, and shall defend, release, indemnify and hold harmless each other from any and all claims, demands, suits, liabilities, actions, causes of actions, or legal or equitable proceedings of any kind or nature, including acts of omissions and/or negligence by either party or persons acting under each party’s respective control. Yep, lots of complicated words that actually mean a lot if you got into a disagreement.

Things to Consider in Creating Your Own Contract

All this said, if we can avoid boilerplate contracts, we do. We can provide our clients with a Contract for Commission that is fair, easy to understand and covers a lot of important topics generally left out of standard form agreements. Our current contract is 11 pages long, but we have seen contracts used successfully by other artists that are a single page.

Tap into your logic and creativity when tailoring the specifics of your contract. Come up with as many justifiably realistic scenarios as can be imagined that pertain to your particular medium, project and location (i.e. vandalism and acts of nature do happen, light-saber wielding flying armadillos with a penchant for damaging sculpture do not, as far as we know).

Contracts should be written using accurate legal terminology so that they are legally binding and understandable by the legal people that will be reading them. You can begin with a template and adjust it to suit the particular niche you’re working in.

Some items to consider that might be unexpected surprises if not sorted out in the contract:
• You, the artist, are designing, executing and fabricating the artwork. It should be stated that, subject to review and acceptance by the client, the artistic expression, scope, design, color, context, etc. of the work is to be determined by the artist. But if the client doesn’t accept the work, what then?

•Are you delivering it, installing it or overseeing such? If not, the client needs to know that it is their responsibility and often will need information on what is involved in those things. If the client is responsible for the preparation of the site, and it’s not ready by the time the sculpture is complete, who pays for storage? Who pays for shipping and transit insurance? It also needs to be stated that the client is responsible for traffic control, any necessary barricades to protect the public during installation, etc.

• It is a good idea to have an approval of site clause. If the client puts your sculpture on a base or pedestal that can potentially injure community members (such as one with lots of “sticky-out, eye-poker-out bits” – we’ve seen this happen), you could get rolled up in a lawsuit if someone gets hurt, even if it wasn’t the sculpture directly that caused the harm.

• If you have to travel to meet with the committee, oversee the installation, etc. who pays for the travel?

• How many concept sketches are you willing to provide initially and how much will you charge for additional beyond that? If you’re dealing with a committee, incorporating everyone’s input and getting them all to agree on the final design can balloon into many more sketches than you may have bargained for, eating into your patience, budget and time to create the final piece.

• How long does the client have to approve the sketches or clay maquette? Is there a charge for changes at that point?

•What is the timeline? If the project has a specific deadline, any time spent on contracts or changes reduces the time you have to create their art. Clients sometimes lose sight of the fact that if an artist estimates 5 months to create the work and 4.5 months are eaten up by miscellaneous dealings with committees, the artist is ultimately given 2 weeks of working time, and without extraordinary efforts, the results can suffer (been there on this one).

• Payment schedule: What is the total price and how will payments be invoiced and paid? Definitely 1/4 – 1/2 up front, depending on the size, scale and type of the project, another payment/s in the middle after completion of sculpting, molding, etc. and final payment after Final Acceptance and before sculpture is released from the foundry (if it’s been delivered and installed, it’s not as if you can take it back if you don’t receive your final payment). As a note on budget, consider adding an admin charge to cover all the time spent in communications with the clients, which adds up quickly. If you don’t have an administrative assistant, think of paying yourself an estimated hourly wage to cover some of the time spent on emails, the phone and digging up information they will ask you to provide.

• What happens if the artist dies before the work is completed? Can they sue your heirs or estate? (Hint: Say no, and that must be stipulated, and usually is in the indemnification clause). For us, in the contract we agree that if one of us dies, the other will honor the terms of the contract and complete the project as specified. If we both were to die, our heirs, family and estate are in no way responsible for the completion of the work nor are they entitled to any compensation for the uncompleted work.

• It should be stated that the artist retains the copyright to the work, while title and ownership passes to the client upon final acceptance and payment in full.

• What sort of warranties will you provide to the client? For how long?

• How are communications officially sent? Seems an odd thing, but what if your invoice or their payment gets “lost in the mail” because it was sent to the wrong address?

• Who is responsible for the future maintenance of the work? (Hint: the client) You should provide detailed instructions for how to maintain and care for the work, but that responsibility passes to the client along with the title and ownership. If you choose, you can be in charge of maintenance for a specific time frame and an additional fee, but that needs to be clearly stated how long and how much. And consider carefully – life can change a lot from year to year and your generous offer may end up being a millstone around your neck if you decide to move to Europe or something.

• What happens if there is a dispute between you and the client? The first step ought to be an agreement to work through mediation before any legal remedies are pursued. If legal remedies are pursued, where that happens becomes a very important point and should be outlined in the agreement. Contracts are usually written under the laws of a specific state. If it’s not your state, there may be a possibility of travel for contract dispute resolution and those costs add up fast.

•What happens if either party at any point decides to terminate the project? What is each party entitled to receive in that case and what stipulations would govern each parties actions at that point?

This is a brief sampling of items covered in our contract and hopefully gets your mind thinking a bit more in the legal realm. It is well worth the time and effort required to sort out an agreement that protects both parties, makes clear what you are agreeing to and lays the foundation for an easy and seamless working relationship that supports bringing another public artwork into the community.

A parting pearl: Yes, the artwork commission you are considering may well bring you fame and fortune, a direct path to nirvana, limo service to and from your new yacht and weekly parades with elephants in your honor BUT if the contract is a festering turd, and it can’t be sorted out, you can always go with “No Thank You” (besides, you didn’t really want elephants in a parade anyway – that’s really uncool).