Managing participation and Commission agreements

Managing participation and Commission agreements

(www.a-n.co.uk

As audience involvement is a condition of socially-engaged practice, an artist's role is often more about facilitating the 'empowerment' of a project's participants by raising their self-esteem or heightening people's powers of communication, than about passing on art skills.

A project's participants may not necessarily 'feel better' or have had 'fun' doing it. Sometimes, they end up feeling bemused, confused or disheartened by a situation in which an artist has caused them to question their beliefs and motives. Thus, artists need to approach people-centred working with sensitivity, and manage the impact their practice can have on people's lives. This includes guarding against creating dependency amongst participants and devising suitable exit strategies.

Although having a dissimilar approach to their work, Ella Gibbs and Nina Pope share a concern about increasing the audience's sense of ownership and involvement.

Nina Pope thinks of audiences in terms of 'circles'. In 'Broadcast (29 pilgrims, 29 tales)' a collaboration with Karen Guthrie for Tate Modern, the journeys of twenty-nine modern-day Chaucerian pilgrims were screened in Borough Market and simultaneously webcast. Pilgrims formed the innermost audience 'circle', the next being the project's orchestrators, third the invited audience, fourth those who chanced on the event and fifth, people accessing it on the web.

Whereas Nina Pope retains a heavy authorial presence in her work, Ella Gibbs works with audiences in a looser way. In Programme – a project that was part of 'Temporary Accommodation' at the Whitechapel, London in 2001, she tried to exempt herself from her work, believing the vacated space allows others a more engaged relationship.

Jeremy Deller's re-enactment of the Battle of Orgreave – a significant event in the 1984 miners' strike – involved detailed conversations with local people over twelve months within a two-year planning period. Conversations were all about what actually happened and getting it right. There was a certain amount of wariness and suspicion that he felt could only be overcome by talking. People had to trust him and he had to demonstrate respect for their sensibilities and stories.

Open to engagement

A key part of realising any socially-engaged project is knowing when to give it over to other people, whether professionals or public. During Faisal Abdu'Allah's residency at Concorde Centre in Hackney, London, although he started with an idea about the type of film he would make with young people: "It became apparent that they had their own story to tell and that they could bring to the film a zeal and a script that far outstripped my own".
Video artist Maria Wilson, in her residency in a special school, described how pupils "chose to take control and make all their own" the story they were creating.

Although she expected her ideas to be confirmed and challenged, she did not anticipate how much they would be expanded and transformed in the process: "I experienced a brief panic when the students began to do something quite unexpected. This is now a familiar and accepted part of what unfolds in all my collaborations."
Natalie Taylor acknowledged from the outset that her collaboration with horticulturalist Jill Raggett for the 'Wider view' project at Wysing Arts would take her into the realms of the unknown: "I endeavoured to create a situation of palpable tension. It was crucial to bring a sense that creative events were about to occur at unexpected points. That the plants were in control of this tension and would be responsible for its release was an important part of the work."

Organisations are often willing to invite an artist into their midst, assuming – not always correctly – that because a project is proposed, that everyone to be involved has a similar interpretation of the expectations and parameters.
Within Anna Best's projects, she asks participants to confront their fears about doing activities they may find uncomfortable. She rejects the popular notion that art activities should be 'fun'. In such situations, although some participants will embrace the challenge, there is a danger that others might feel like guinea pigs in someone else's experiment.

Experienced artists like Anna Best understand how to prepare the framework and negotiate relationships and responsibilities. However, artists new to engaged practice should identify during the planning processes whether specialist training or support is necessary, to improve the work and protect vulnerable participants.

Recognition factors

Because their work straddles art world and real world, many artists involved in socially-engaged practice also seek to present their work in gallery contexts. An example is Anna Best, whose Wedding Project was a collaboration with Tate Modern. Documentation of her residency (with Nina Pope and Simon Poulter) at Grizedale was incorporated into her installation 'People from Off' at Edinburgh's Collective Gallery.
Documentation arising from socially-engaged practice may take the form of performances, film and video, CD-ROM, DVD, web or television broadcasts. These, along with catalogues, critical writing and reviews, artists' books, conference papers, seminars and specialist academic courses serve to contextualise an artist's practice in the art world.

Thus, the artists involved get the peer group and critical feedback that contributes to raising their profile within art and cultural arenas. This in turn helps to ensures they can continue to develop their practice and raise the resources to do so.

Commission agreements By:

Nicholas Sharp, Sheena Etches

http://www.an.co.uk:81/knowledge_bank/article/91121/77173

Introduction

The checklist covers many issues relevant to small-scale private and public art commissions. It has a series of subject headings with questions to consider. Further explanation of the issues arising from the questions is in notes.

As no two commissions are the same and because of the growing financial value and complexity of many commissions, a specially designed contract will be needed in most cases. Specialist advice and help may be available from public art agencies or other arts bodies – see Links.

The parties

• Who are the parties to the agreement?
The parties to the agreement will usually be the artist and the commissioner, but may also include other parties such as a public art agency or funder. The agreement should include the name, address and contact telephone numbers of all parties. All parties should notify the other parties immediately on a change of address or contact number.
• Which of the following individuals/groups will be involved in the production and installation of the commission?
Funders, site-owner/developer, site contractors, architect and/or design team, project manager, subcontractors and specialist suppliers, artist's assistants.

The role and function of each party and others involved in the commission must be clarified and understood by all parties.

The site-owner or developer is often the commissioner of the artwork and will tend to own the site for which the work is to be commissioned.

Site contractors, usually a building or construction firm, will often be responsible for landscaping, foundations or other preparatory works for the commission and/or installing the work with the assistance of the artist.
An architect will be appointed by the site owner/developer to produce designs for the overall project and will supervise the completion of the works by the contractors and others working on the project including artists working on commissions. Increasingly, artists are being invited to collaborate with the design team at an early stage in the design process of the site or building.

In such cases it is advisable to outline in detail the roles and relationships of the artist and all working in the design team, together with a 'schedule of services' explaining the scope of activity and advice that is expected from each team member at each stage of the commissioning process.
• Will a public art agency, public art consultant, dealer or gallery be involved in the commission?
Public art agencies and consultants are usually employed and paid by the commissioner to advise on the selection of artists and to oversee completion and installation of the work on the commissioner's behalf.

However the extent of their responsibilities needs to be clarified at the earliest stage in particular to identify what, if any, matters must be approved by the commissioner, for example to accept the designs or the commission itself.
• Will the artist's contract be direct with the commissioner or will the artist work as a nominated subcontractor?
Working as a subcontractor 'nominated' by the developer as the subcontractor responsible for carrying out the commission is not advisable since it requires complex contractual documentation, often involving performance bonds, indemnities and insurance cover.

As a nominated subcontractor, the artist would have a contract with the main site contractor who would then be responsible for supervising and paying the artist.
• Will the artist subcontract aspects of the production of the work?
Additional contracts/letters will be required between the artist and any of his/her subcontractors appointed by the artist and used to manufacture various components or stages of the artwork.

Any guarantees that the artist gives the commissioner, such as defects periods, should be duplicated in the agreement between the artist and his/her subcontractors/fabricators. The artist should also make clear arrangements with his/her subcontractors on how stages of the manufacture of the work will be signed off.

The commission

• How can the work to be commissioned be best described?

The agreement must clearly identify the work to be commissioned by providing as much detail about the proposed work as possible including the theme/subject matter, material or medium, approximate size, location, method of fabrication, lighting, structural/environmental requirements and any other specific requirements.

These details are usually detailed in a schedule attached to the agreement. It is helpful to indicate which elements of the work may change as fabrication proceeds for example colour and/or dimensions and to specify any elements that the artist considers to be integral, for example plinth, access, etc.

Preliminary designs

• In what format will the preliminary designs be submitted to the commissioner?

Depending upon the nature of the proposed work, the preliminary designs may take a number of forms (model, maquette, drawings, computer-generated image).

• What is the deadline for delivery of the preliminary designs or is this flexible?

• How many times can the commissioner request changes to the designs within the agreed fee?

The agreement may state the maximum number of changes to the design or additional designs that the commissioner can request for the agreed fee before additional payment is required.
• How many stages will there be to the design process?

In the case of large-scale public and more complex commissions there can be more than one stage in the design process. Acceptance of the initial designs can then be followed by a detailed design process during which the feasibility and costs of the initial designs are explored more fully.

For large-scale commissions this design process is sometimes linked to the RIBA stages which are roughly equivalent to concept design, design development and implementation.

For each stage in the design process, details of payment, number of changes to the design and issues of acceptance/rejection should be clearly outlined.
• Will the artist be expected to participate in any public consultation regarding the proposed designs?

Particularly in the case of large-scale commissions, artists can be expected to participate in public events to discuss the proposals or in exhibitions of the proposed designs. Any such activities and associated fees should be outlined in the schedule.

Acceptance & completion

• Can the commissioner view the work at any time during its fabrication?

•What is the deadline for the completion of the work?

• Who will determine when the work is complete?

It is usually the artist who will decide when the work is complete and the agreement should ensure that the commissioner cannot reject the final work if it accords substantially with the agreed designs. If the commissioner does not like the final work they are at liberty to terminate the agreement, but would then have to pay the artist for work done.

• How will formal acceptance of the work be demonstrated?

Delivery of the work

• If the Work is not made on site, what is the date for delivery of the work?

• For works created off site, who will be responsible for arranging for delivery of the work?

• For works created off site, who will pay for the costs of delivery and insurance during transit?

• What, if any, penalties will the artist incur for late delivery of the work?

• For works created off site, who will be responsible for inspecting the work on arrival to check for damage during transit?

• For temporary works, who will be responsible for arranging and paying for de-installation, insurance and return transport?

Installation of the work

• Who will be responsible for carrying out any preparatory site works?

The commissioner is usually responsible for preparatory site works. The necessary site works should be documented in the schedule, together with the intended timing to ensure that the site is ready for the installation of the work and for example, that any foundations have had time to harden.

• Will a structural engineer be needed to check that the proposed site works are adequate for the proposed work?

How will the site works be signed off?
• If the work is not made on site, what is the date for the installation of the work?

• Between what times will the artist have access to the site to make or install the work?

• Who will be responsible for arranging all necessary planning consents and approvals?
The commissioner is usually responsible for ensuring that all necessary planning consents and approvals of any statutory authority and the site owner are obtained in good time for the siting and installation of the work. The commissioner will also usually be responsible for associated costs. The planning application process can take a long time and applications should be submitted well in advance of proposed installation dates.
• Who will be responsible for ensuring that all necessary health & safety procedures are being followed

• Who will install the work?
If the commissioner is to arrange installation of the work it is usual to allow the artist to supervise the installation. The schedule should include detailed information on how the work should be installed and any preparatory site works that may be required.
• Who will pay for the costs of installing the work?

• Who will pay for the costs of making good the area around the installed work?

• Who will pay for storage of the work if, once complete, it cannot be installed as timetabled?

• What is the total value of the commission fee?
Commission fees are subject to income tax and should be included on the annual tax return as self-employed income. Artists should submit an invoice for each installment of the fee and add VAT if VAT registered. If the commissioner is a local authority or if the work is being produced as part of a residency or if the artist is working on site as a subcontractor, tax may need to be deducted from the fees as PAYE. Any queries on tax deductions should be raised with the commissioner, agency or project manager.

If preliminary designs are needed, a non-refundable Design Fee should be paid even if the work does not proceed to a full commission.
• Is the commission fee inclusive or exclusive of VAT?

• Does the commission fee include cost of materials?

• Does the commission fee cover cost of delivery of the work to the site?

• Does the commission fee cover cost of installation of the work?

• Does the commission fee cover cost of any related ancillary work, for example lighting or landscaping?
• When will the commission fee be paid to the artist?
Commission fees are often broken down into a number of staged payments. The agreement should clearly outline the timetable and amounts of each payment. It is common for installments to fall due on the signing of the agreement, on approval of designs, on approval of installed work, with a final amount held back by the commissioner for a limited period against hidden defects. The amount of each payment will not necessarily be equal.
• Will the artist be paid any additional fees if the commissioning schedule has to be extended due to unforeseen delays?
• Will the artist be paid any additional fees if the commissioner changes the brief?
If the commissioner changes the brief or specification for the work unilaterally after the commission starts, the artist should reserve the right to increase fees commensurately.
• Will the artist be reimbursed for any other expenses relating to the commission?
It is usual for artists to be reimbursed for travel costs to attend meetings and other incidental expenses. Artists will normally be asked to submit an expenses claim together with original receipts.

Ownership

• Who will own any maquettes or preliminary designs?
If the commissioner owns the preliminary designs or maquettes s/he will be free to exhibit them or sell them, but not to reproduce them, if the artist remains the copyright owner.

Public art agencies are sometimes keen to have ownership of the preliminary designs for exhibition and promotional purposes.
• When will ownership of the work transfer to the commissioner?
In most cases, ownership of the installed work will be transferred to the commissioner on payment of the final installment of the fee. Transfer of ownership must be stated within the agreement otherwise ownership of the work will remain with the artist.

Once an artist ceases to own the work the law says that s/he will have no control or say over the siting, maintenance or condition of the work, unless the parties have agreed otherwise. These matters must be covered specifically in the contract.

Insurance

• Who will be responsible for obtaining adequate insurance cover for each stage in the commissioning process and to what level of indemnity (All risks insurance, personal accident insurance, public liability insurance, employer's liability insurance, other)?
Artists working off-site during the production of the work will need 'all risks' insurance to cover physical loss or damage to the work until it is finished and delivered on site. For example, if there is a fire in the artist's studio and the work is destroyed. If the work is made on site or once it is delivered on site the commissioner will be expected to take out permanent all-risks cover. Local authorities often do not insure artworks as a matter of policy, in which case it is important to include clear obligations for maintenance and repair.
Public liability cover is required against damage or injury to property or persons when the work is being produced (either in the artist's studio or on site) and when the work is being installed. The level of indemnity may vary during the commissioning process. For example a higher level will be needed when the artist is working on site than when s/he is working in their studio.

The artist should arrange personal accident or injury insurance to cover themselves and anyone assisting them.

Employer's liability insurance will cover the artist if anyone that they are employing to assist with the project is injured whilst working for the artist.

The commissioner may wish to include an indemnity clause protecting them from any loss or damage from the artist's negligence or willful acts of omission.

Warranties and repairs

• Does the artist guarantee that the work will be original?
For commissioned work, the agreement often states that the artist guarantees that the work will be original and will not infringe copyright or other rights belonging to any third party.
• Will the artist be liable to repair or reinstate the completed work, if a fault or defect appears within the 'defect period'?
Most agreements include a 'defects period', often 6-12 months immediately following installation, during which the artist agrees to do any necessary repairs at the artist's cost. Unless the agreement defines the artist's liability in this way, artists can be liable for an indefinite period if the workmanship or materials prove defective.
• Will fabricators and artists suppliers guarantee their work and materials?
Artists must ensure that they have obtained guarantees from any suppliers and fabricators that match the guarantees and length of 'defects period' that the artist has given to the commissioner, so that if the artist is called upon to repair the work s/he can pass the liability back to the supplier/fabricator.
• Will the artist have the first option of repairing the work if it becomes damaged after the defects period?

Relocation & deterioration

• Will the artist be notified if the work is relocated or sold?
• Will the artist be notified in advance of any proposed alteration to the site?
Ideally the artist should be notified of any proposed alteration to the site that would affect the intended character and appearance of the work.
• If the work is ephemeral in nature or created by the artist to deteriorate over time who will have the authority to declare that the work should be removed from the site and who will be responsible for the associated costs?

Copy & reproduction rights

• Who will own the copyright in the commissioned work, maquettes and preliminary drawings?
Copyright in all work produced should remain with the artist.
• Is the commissioned work or a part of it capable of industrial application, for example a design for seating or lighting?
For functional and aesthetic designs capable of industrial application, design right comes into existence automatically when the design is made. Unlike copyright, the commissioner, not the artist is the first owner of the design right, unless this is otherwise agreed and written into the agreement.

Credits & moral rights

• How will the work be credited?
The commissioner is usually responsible for arranging signage of the work using wording agreed with the artist.
• Will the artist assert his/her right of paternity?
The right of paternity requires the artist to be identified as the creator of the work whenever it, or a reproduction of it, is exhibited or issued to the public. This right must be asserted in writing unless the artist is identified on the work itself, or on the frame mount or plinth, in which case assertion is automatic.
• The artist's right of integrity is automatic

Hotlink to moral rights section of website

Glossary link to contracts right of integrity

The right of integrity enables artists to have some control over their work and the way it is displayed after it is sold or out of the artist's possession, regardless of whether the artist owns the copyright. The law can not prevent destruction of a work nor resiting of a site specific work, but it will allow the artist to have their name removed from 'distorted or mutilated' works or if the 'honour or reputation' of the artist is put at risk.

Changing the agreement

• How can the agreement be changed once signed?

All changes or modifications to the agreement must be made in writing and signed by both parties.

Governing law

• Which country's governing law will apply to the commissions agreement?

If either of the parties in not a UK resident or an organisation based in the UK the agreement will need to specify which country's law will govern the agreement.

Disputes

• What will happen if there is a dispute over the contract that none of the parties can agree on?

If there is a dispute about aesthetic or design-related matters, it is usual to allow these to be resolved by an independent expert.

Termination

• Under what conditions can the commission agreement be terminated?
The agreement should define as far as possible the circumstances under which the contract can be terminated by either party. The contract can be terminated by either party if the other party breaches any of the agreed terms of the contract. Often the agreement can be terminated by the commissioner if s/he does not accept the designs or later decides not to proceed with the work.
• If the commissioner terminates the contract (other than for breach of contract by the artist) how much will the artist be paid?

To ensure that the artist at least gets a fair reward for the work done up to the time of cancellation, the agreement should specify what fees are payable to the artist if the commissioner decides not to accept the designs or not to proceed with the work or other circumstances arise beyond the control of the commissioner that prevent the continuation of the commission.
• If the artist voluntarily terminates the contract how much will the artist be paid?

If the artist voluntarily terminates the contract s/he will be in breach of contract and will usually not be paid any further fees and may have to return any fees that were paid in advance for work not yet completed.

• If the agreement is terminated who will own the copyright and have the legal ownership in the unfinished work?

If the commission is ended for any reason the artist should continue (unless the artist dies or cannot finish the work due to illness) to own the copyright and have the legal ownership in the unfinished work and have the sole right to complete, exhibit or sell the work.
• What will happen to the work if the artist dies or is incapacitated through illness?

The agreement will automatically terminate on the death or incapacity of the artist. The artist or his/her estate will then receive all payments due up to the date of death/incapacity and the commissioner may keep the work in progress and any preliminary designs for the purpose only of completing the work using an artist acceptable to the Artist or his/her estate.

• Can the contract be terminated due to circumstances that are beyond either party's control?

Neither artist nor commissioner are usually treated as being in default of the agreement if any delay in completing the work is due to any cause beyond their reasonable control. For example, extreme weather conditions, outbreak of war.

Signatures

• Who should sign the commission agreement?

The agreement should be dated and signed in duplicate by each party. The commissioner may grant its agent the authority to sign the agreement on the commissioner's behalf.