PUBLIC ART WORKS
Adopted by the CAA Board of Directors on October 31, 1987; from the Recommendation by the Sub-Committee on Public Art of the Artists’ Committee of the College Art Association of America. Revised by a joint ad-hoc subcommittee of the Services to Artists and Professional Practices Committee and approved by the CAA Board of Directors on February 20, 2022.
Public art works, that is works commissioned from an artist by a public agency for placement in a public place, are a long-standing artistic tradition and an increasingly integral component to city and community building and design. This statement addresses several matters involving the commissioning of a public artwork which are of concern to artists and makes a number of recommendations to artists and to commissioning agencies.
The management of Public Art projects from artist selection to installation varies widely. Artists should be aware that public art is often relegated to an organization’s public works, recreation, or parks department and as such, there may be unfamiliar terminology and process details that do not relate to artistic processes. This is where the arts administrator/project manager plays a role to ensure contracts and requirements make sense for the project, materials, site, and schedule.
The contract for the commission of a public artwork is usually prepared by the commissioning agency. Artists may believe that they have no alternative but to sign an agreement in the form presented to them, but this is not the case. All agreements for the commission of public art are subject to negotiation and may be adapted to accommodate the artist’s concerns. The committee urges artists to have a lawyer review the commissioning agency contract, and have the lawyer carefully explain the nuances of the contract. Keep in mind that the commissioning agency is seeking to commission an artwork; they want to have an agreement that works for both parties, leading to a position outcome for the process and the final product. See Resource List at the end of this document for links to model agreements. These model agreements may be helpful to the artist’s lawyer; artists should not attempt to act as their own attorney.
Public Art as an Area of Study
CAA supports colleges and universities in the creation of more opportunities for students and scholars to prepare for a career in Interdisciplinary Visual Art and Public Art; this includes public art commissions, community-driven art, social practice, artistic approach to civic/community engagement, and/or arts-based city planning. These areas are prominent in communities of all sizes and may lead artists to careers in Arts Administration as well as securing innovative approaches to design and social engagement. Such programs and opportunities emphasize the impact of the arts in specific contexts that support artists and scholars in making socially conscious contributions to communities. Designing solutions and piloting new approaches to human centered design is a key element of Public Art as well as within an arts education (as seen in the San Francisco Art Institute’s Art, Place + Public Studies program).
The CAA Public Art Sub-Committee expects that, due to the civic standing of public art, most commissioning agencies will operate from a foundation of racial equity. We recognize that race is the leading indicator of life outcomes for people of color, and we seek to undo racism in all that we do. The CAA Public Art Sub-Committee believes that opportunities for all artists, and particularly for artists of color, to create public art, to serve on public art selection juries and to work in the field of public art as an arts professional is a core value of our organization.
(For more information on Cultural Equity in the field of Public Art, see the Resource List.)
THE COMMISSIONING PROCESS
Public art can be commissioned by public and private entities. State, county, and local governments often allocate funding for public work through a “percent-for-art” program, and through other sources of funding as well. Percent-for-art programs are established by ordinance or legislation and dictate that publicly funded construction projects allocate a percentage of construction budgets for art, typically between 1 and 2 percent. The process for commissioning these works, and the kind of work eligible for these programs, varies widely across commissioning agencies. Artists are encouraged to research what it takes to compete for, and to design and execute, a public art project prior to dedicating time and resources toward applying for commissions. (For more information, see Resource List at the end of this document.) The process by which these works are selected should be equitable and transparent. The recommending committee should comprise a demographically diverse panel of experts and local stakeholders that reflects the community and audience in which the art is to be sited. The constitution of the selection panel, or jury, and the process by which that group solicits feedback from the public is often outlined in the policy of the public art program.
CAA Public Art Sub-Committee espouses the following tenets from the Americans for the Arts Best Practices for Public Art Projects:
- Arts professionals should be involved in the artist selection process.
- Each panel should include at least one visual/public artist, preferably one who has experience with the type of project for which a selection is being made (e.g., if the project is for a streetscape, the artist on the panel should have some experience with outdoor, site-specific artwork).
- Additional arts professionals can include curators, arts administrators, possibly artists of another discipline, and arts educators. Those who profit from selling artworks, such as gallerists and art dealers, who may have a conflict of interest, should not be considered in the selection of public art.
- There should be balanced representation on selection panels—gender, age, diversity (we have a policy/practice of requiring at least one person of color on a panel, more if possible—we don’t want to tokenize representation).
- Some public art programs have centered racial equity when creating selection panels; seeking to make up selection panels entirely of visual arts professionals of color and ensuring that they are advised by racially diverse subject matter experts whenever possible.
Private entities such as museums, developers, and educational institutions also regularly commission public art. While these organizations do not need to follow the strict guidelines dictated by percent for art programs, their process for selecting work should, ideally, also be transparent and provide opportunities for a diverse group of local community members and stakeholders to participate in decision-making.
Since public art can have considerable impact on neighborhoods and communities, residents and stakeholders of those areas need to be involved in the commissioning as well as the artist’s design process once selected. Prior to writing a Request for Qualifications, the commissioning body should meet with local stakeholders to better understand their vision for the neighborhood. In order to understand and respond to the needs and concerns of all those involved, the commissioning panel should partner with other local organizations, nonprofits, and community groups to establish the goals of the project. The artist can best serve the community’s needs by collaborating throughout the design process. The public should be invited to review conceptual work; respond to maquettes, renderings, or plans; and meet with the artist(s) to discuss whether the proposed artwork resonates with those who will live with the artwork once it is in place.
Request for Qualifications
Most commissioning agencies make artist selections based on a Request for Qualifications, or Call for Artists, which typically requires the artist to submit a letter of interest, a portfolio of artworks and descriptions, a curriculum vitae, and references. Selecting artists by a Request for Proposals is discouraged as they place undue burden on the artist. It is generally recognized throughout the field of public art that artists should be paid to create proposals. The commissioning agency may have a proposal phase in the artist selection process. After a jury has reviewed the artist qualifications submitted through the RFQ process, they may select a group of finalists who will be paid to create proposals.
- The locations for public art have many possible complexities—underground utilities, FAA regulations if at an airport, future plans that affect a site—that an artist cannot fully grasp outside of a thoroughly vetted design process. Given this, it is best practice for the commissioning agency to select an artist, not an artwork.
- For projects with substantial budgets, artists selected for a proposal phase should be given an opportunity to visit the site at the expense of the commissioning agency, in order to understand the opportunities and constraints presented by the site where the artwork will be located.
- Proposals from artists should not be solicited by a commissioning agency until the requisite funds are available for the project. A separate contract for a proposal by the artist may precede the selection of the commissioned work and the award of a contract for its fabrication and installation.
- Artists should understand the payment for the proposal phase before committing to participate and determine if the risk/reward is acceptable. Shortlisted artists should receive a stipend for the manufacture of maquettes, digital models, and/or material selections in order to make an accurate presentation to the commissioning agency. Recent proposal phase fees have ranged from $1,000 to $2,000 for smaller budget commissions (under $100,000) to $2,000 to $5,000 for commission budgets of several hundred thousand dollars and more.
Commissions may be awarded through a competition, where proposals are sought from a number of artists. This form of artist solicitation can benefit artists who do not have experience in the field of public art, allowing them to gain a commission without necessarily having public art or community-driven art in their portfolio. The artist should fully understand the selection process, the requirements of the project should they be successful in being commissioned, and the project timeline prior to submitting a proposal.
All materials submitted in connection with a proposal should bear the artist’s copyright. As digital files are adequate for the commissioning agency’s permanent record of the proposal, the proposal agreement should provide that any models and drawings created by the artist in support of the proposal remain the property of the artist, subject to an option to purchase by the commissioning agency at a separately negotiated price. If an agreement for any models/drawings is created, the artist should retain all copyrights. The actual deliverables are property of the agency, with creation and/or distribution of the images of the model/drawings permitted to allow the commissioning agency to educate the public or promote the collection.
In making a proposal, the artist should be careful to ensure that the amount paid for the commission will cover all the artist’s expenses and allow a reasonable profit. All expenses should be carefully estimated in advance in a budget which includes, among other things, costs of design, engineering, fabrication, transportation, installation, deinstallation, artist’s labor, studio assistants, expenses necessary for the design, including general overhead.
THE CONTRACT FOR THE COMMISSION
Among the contract provisions for a commission that deserve special attention are:
Title: The term “artist” and not “contractor” should be used to refer to the artist in all contracts. This language should not make the artist responsible for liability usually assumed by a general contractor (i.e., geotechnical, structural design of facility, etc.).
Insurance: Insurance is often difficult and costly for artists to obtain—the model can be very different if speaking of permanent versus temporary works.
Site preparation: Preparation of the site and its associated costs should be negotiated between the artist and the commissioning agency and should follow the artist’s specifications as closely as possible. Often the commissioning agency has technical support and staff to aid in site preparation, leaving more funding for art-specific needs (e.g., sculpture pads, wall preparation).
Removal or relocation: Provisions for removal or relocation should clearly define the procedure to be followed in deciding whether to remove or relocate, as well as the procedure for the selection of a future site. The artist should be notified and consulted and as appropriate be given the opportunity to buy the work back. Work should not be relocated without the artist’s written consent.
(See VARA in Resource List.)
Maintenance: Artists should be mindful to include in their budgets all costs associated with the installation, including expenses related to traveling to the site and any specialized hardware or rigging required. All installation costs should be borne by the commissioning agency. Installation should occur under the supervision of the artist. Maintenance and conservation considerations should be addressed in the initial artist proposal and the granting institution should make considerations for the long-term care of the site-specific work, whether indoors or outdoors, as their ongoing responsibility. The artist’s warranty for an artwork for any fabrication or material defects should end not later than one year after acceptance of the work by the commissioning agency, after which time the commissioning agency should hold the artist harmless against all claims. Artists cannot be held responsible for materials with manufacturer’s warranties of less than one year if material is approved by the agency. After acceptance, maintenance and repair of the work should be the responsibility of the commissioning agency, which should follow a maintenance manual provided by the artist. The artist should have the opportunity to make or supervise repairs or restorations at a reasonable fee during the artist’s lifetime.
Cancellation: Provisions for cancellation of the contract, if insisted upon by the commissioning agency, must be carefully negotiated. After approval of the maquette or plans by the commissioning agency, the contract should not be subject to cancellation except where the project cannot be completed by the artist or the artist’s assistants after the artist’s death or total disability, or as mutually agreed upon by the artist and commissioning agency. In cases of cancellation, all design materials and documents remain under the artist’s copyright. The contract should provide for arbitration of all disputes in accordance with an agreed upon arbitration mechanism. Penalties for breach of contract should apply equally to both parties. The artist should have the opportunity to cure any alleged breach upon written notice and within a reasonable time.
Schedule of Payments: Payments should be scheduled in such a manner as to provide funds in a timely and meaningful way at basic milestones, such as 50 percent of fabrication, etc.
Lynn Basa, The Artist's Guide to Public Art: How to Find and Win Commissions (New York: Allworth, 2019).
Cynthia Esworthy, “From Monty Python to Leona Hemsley: A Guide to the Visual Arts Rights Act” (Washington, DC: National Endowment for the Arts Office of General Counsel, 1997).
AUTHORS AND CONTRIBUTORS
Sub-Committee on Public Art of the CAA Artists’ Committee: Sam Gilliam (chair); Cynthia Carlson; Gilbert S. Edelson; Joyce Kozloff; Irving Sandler.
The joint ad-hoc subcommittee for revision was chaired by Denise Amy Baxter and included from Services to Artists: Hollis Hammonds and Farhad Bahram; from Professional Practices: Robert Ladislas Derr, Paul Jaskot, Meredith Lynn, Matthew Mosher