Preparation - The contract
You have selected your artist, you know what the artist is going to make and where it will be located and you’ve risk assessed the project. The next stage is to agree in detail the legalities, the roles, responsibilities and commitments that will ensure the project is of appropriate quality and is delivered on time, on budget.
The Contract - Who does what and when
A contract should reflect the important aspects of all the discussions and agreements to ensure clarity over roles and responsibilities, avoid misunderstanding and unexpected changes to the project as well as acting as proof that an agreement took place and is legally binding.
A contract can of course be very useful if things go wrong but a good contract should be a support for the partners in a project, reducing the likelihood of unforeseen circumstances and offering clear mechanisms for dealing with them if they do occur. A good contract should be more a safety net than a pair of handcuffs.
Henry Lydiate (publicartonline) offers the following overview of the major phases of a commission contract:
- origination and fee
- fabrication, fees and costs
- installation, fees and costs
- maintenance, fees and costs
- ownership, moral rights and copyright
Every project is unique so a completely standard contract is not appropriate. However, some aspects of the contract will be standard.
The approach we are recommending is a two-part contract, a generic ‘Artists Contract’ and a ‘Schedule’ setting out the specifics of the commission.
The generic contract covers the core legal requirements but does not specify the particular aspects of the project. The Schedule is the document that describes in detail what the artist will do, the nature of the work, any community involvement, the deadline for completion, dates for review or monitoring meetings and payment schedule. This is all the information you have already formulated in the draft brief. Review it again to make sure it is thorough enough and if so, use this as the Schedule to your contract.
We have provided an example of an artists’ contract and schedule as a starting point. This is only a sample contract to act as a guide when drawing up contracts for your own project/s. For Hampshire County Council staff, we would recommend that you discuss any contract with Legal Practice to ensure changes can be made to fit individual cases. For other users of this website, you may wish to seek independent legal advice
It is preferable if one individual can be named as a primary point of contact for the commissioner with the artist. It may be that the artist will be dealing with a number of people but one primary contact can be helpful particularly where the artists is working part-time on the project. Regular review meetings are a good idea. These should be sufficient to ensure that both parties feel well–informed on the progress and that any issues can be raised in good time, but not of a frequency that creates a time burden or a sense of mistrust. Also discuss with the artist how frequently they would like to meet – some artists prefer lots of contact and some prefer to be left alone. Strike a good compromise.
As commissioner it is your responsibility to ensure that the artist delivers an outcome of the nature and quality that was expected and that any changes are clearly understood and agreed. A clear Contract and Schedule will support you in this and reduce the possibility of any unpleasant surprises. Remember you should not be afraid to put a project on hold if you have serious concerns about the potential outcome.
The artist will normally be paid in stages. Where possible, discuss a suitable payment schedule with the artist. The artists’ economy can be volatile. For example, even an experienced artist may not have the financial flexibility to carry large material costs for a significant period. The artist should be able to offer guidance on the milestones for the project such as major material purchases, or particularly intense periods of concentrated work but try and keep it simple. Make it clear what the triggers are for releasing payment – eg: receipt of final designs.
If the artist is involved in maintenance there may be a fee in connection with this.
With paintings for example, we tend not to collect the piece until the artist has received payment.
Examples of alternative payment stages:
- 2 payments of 50% – one up front one on completion
- 3 payments – 30% on receipt of Signed Contract and Design Proposal, 60% on commencement of Fabrication, 10% on Completion/Installation.
- If the project runs over more than one year with regular time commitment from the artist, they may request more regular payments. This might be appropriate but you will need to check that this is not an issue in relation to the artist’s employment status (monthly payments appear more like someone who is employed by us). Checklist
(Extract from ACE Copyright Guidance Sheet © Madeline Hutchins 2005)
‘The person who created the work is the ‘first owner’ under copyright. The first owner automatically owns the copyright unless a written contract states otherwise.
For literary, dramatic, musical and artistic works, if the creator of the work is freelance, even if commissioned, the creator is the first owner of copyright. If the creator is employed and makes the work in the course of their employment, the employer is the first copyright owner.
For sound recordings, broadcasts and cable programmes the first owner is the person responsible for the arrangements necessary to make the recording etc, and therefore usually the recording company.
For the typographical arrangements of a published text the publisher is the first owner.
Ownership of the copyright in a work is separate from the ownership of the physical item, for example, the arts centre owns the piece of sculpture, but the sculptor owns the copyright to it.’
The artist retains copyright, but a standard clause in contracts can be that the artist grants the commissioner a licence (permission) to reproduce images of the work for publicity and not-for-profit activity.
Key points to remember
- As a rule a commissioned artist should be a contractor. Ensure that the nature of the project or payment schedule does not affect their employment status.
- Legislation changes, so always keep in touch with the Legal team.
- Ensure that the artist is aware that HCC has a legal obligation to ensure any sub-contractor undertaking installation work that involves building construction work has CIS Registration.
- Ensure the artist is CRB checked if he/she is working with young people.
After you have drafted your contract you should send it to Legal Practice - Contracts for approval.
- Hampshire County Council Legal Practice - Contracts
- Contracts/Copyright: Public Art Commissions - Good Practice
- Artlaw – contracts section
- Hampshire County Council employment status checklist
- Arts Council England Copyright Guidance
- Public Art Online copyright guidance