By Sarah Conley Odenkirk

Originally published in April 2011 as a Web Special at www.sculpture.org, the website of the International Sculpture Center

A number of recent art world controversies have raised the issue of the importance of clear communication. A controversy beginning in 2007 between artist Christoph Büchel and MASS MoCA reignited with gusto the debate over balancing institutional policies and artists’ rights. The museum engaged the artist to create a football-field-sized installation titled “Training Day for Democracy.” Unfortunately, nothing was committed to writing. After the relationship between the parties deteriorated, MASS MoCA wanted to move forward with the exhibition of Büchel’s enormous, albeit unfinished project. The artist strenuously objected and a lawsuit soon followed. [1] A couple of very interesting rounds in the courts later, the case finally settled in late 2010. [2]

Around the same time, the director at MOCA in Los Angeles made the decision to whitewash a mural MOCA commissioned from street artist Blu. [3] Located on a wall close to the Department of Veteran Affairs and a veteran memorial, the mural depicted coffins draped in dollar bills. To the outrage of many artists and art supporters, the museum immediately painted out the mural to avoid concerns that the location of the work was insensitive and could offend veterans.

Somehow, each time these controversies arise, it seems that artists and institutions are caught by surprise. Hasty solutions are implemented, and chaos ensues as each side cries foul. Occasionally even a lawsuit follows. While some controversies are unavoidable, good policy planning and well-crafted contracts go a long way to nip this sort of controversy in the bud.

A properly constructed and communicated institutional mission would go a long way to providing a framework for consistency, clarity, and resolution. Clear institutional policies and articulated exhibition goals could insure that an institution responds in a way that respects objections while protecting artistic expression and the institution’s choice to display particular works.

Institutional missions and policies should not only address what services will be provided to the institution’s audience, but should also anticipate a response process in the event of challenges to those missions and policies. While professional organizations like the American Museums Association provide a list of ethical guidelines, they are open to interpretation and revision to suit any particular purpose. The important and difficult work needs to be done by the board of directors, the chief administrators and the curators along with the input of risk management and/or legal counsel. Serious consideration should be given to whether an institution considers using controversy as a springboard for public discourse an important part of its mission. Failing to recognize the institutional setting as one perfectly situated to facilitate and encourage constructive discussion and debate is to squander a valuable community asset. On the other hand, ignoring the limitations of institutions relying on outside sources for financial support is naive. Settling on a clear mission is one way to provide some freedom for institutions to move away from reflexively viewing controversy as a potential legal quagmire. Instead controversy could be viewed as an opportunity to provide the larger community with a safe arena for cultural exploration. It also preempts, to some degree, the ability of funders to complain about where resources are spent.

We all know that hindsight is 20/20, nevertheless both the Büchel and Blu disputes may have been avoided, or at least minimized, with unambiguous communications and comprehensive contracts. In both cases it seems that the various parties’ expectations and desires were not thoroughly discussed in advance of beginning work, much less committed to writing, and that matters only grew worse as the work progressed. Absent too were clear guidelines for addressing the ever-changing landscape of evolving commissioned work.

Good areas for proactive clarification in a situation such as Büchel’s include: communicating the institutional and financial limitations of the museum in supporting such a large-scale project; establishing time lines and financial expectations; creating a reasonable amount of flexibility while maintaining clear communication of expectations; and clearly setting out consequences for failure to properly communicate or perform without squelching artistic vision or compromising institutional obligations.

Areas in which definition of expectations could have aided in the Blu situation include: communicating the potential institutional constraints a museum has in providing a forum for street art; preplanning or at least discussing the nature and content of the design; and setting out a plan for oversight of the actual work from the beginning.

In general, the institution/artist relationship would be much smoother if carefully written documentation of collaborations was considered essential to forming a productive relationship and not perceived as an obstacle to the creative process. Contracts could serve as a valuable communication tool especially if they routinely contained some or all of the following elements:

• Articulated perspective from which each party is coming to the proposed project;
• An established set of expectations regarding the collaborative process, the artwork itself, and the way in which the artwork is to be displayed and/or maintained;
• A clearly defined design process with scheduled time and limitations for discussion, approval and revisions;
• Fabrication and Installation process including responsibility for site conditions, requirements for any subcontracting relationships, periodic approvals of fabrication progress, and appropriate milestones;
• Ownership of artwork and preparatory documentation or presentation materials;
• A description of the manner in which changes to the artwork itself or the schedule of fabrication and installation are to be made; and
• Dispute resolution procedures.

This list is certainly not exhaustive, but should serve to point out some of the more important areas to be considered and covered. Organizations such as Americans for the Arts (and in particular, the Public Arts Network section) provide valuable resources as a starting point in developing policies and contracts.

The spirit in which such documents are drafted should not be given short shrift either. Maintaining a professional yet friendly attitude is the best way to establish a trusting relationship that can nurture the creative impulses such collaborations work so hard to harness and display.

In the end it is overly simplistic to boil this all down to a question of communication. However, clearly and logically establishing expectations, setting out a structure for performance and agreeing to methods for addressing unforeseen circumstances or disputes would go a very long way to avoiding many of the art world’s hottest controversies. In other words, let us try to learn from others’ past mistakes. Then, perhaps, we could all focus more time and attention to actually making and showing the art.

Notes
1 Roberta Smith. “Is It Art Yet? And Who Decides?” The New York Times, September 16, 2007, Art and Design.
2 “Training Ground for Democracy,” www.massmoca.org, December 7, 2010, accessed February 28, 2011, http://www.massmoca.org/event_details.php?id=144.
3 Jori Finkel. “Museum of Contemporary Art commissions, then paints over, artwork.” The Los Angeles Times, December 14, 2010.

Generally, insurance companies will not provide insurance to artists for design-only projects or for the design portion of a project.  If you can find a company willing to provide coverage, it’s crazy expensive and probably not worth it except in absolutely the largest of jobs!  To some degree, it makes sense that there is no errors and omissions coverage (something available to licensed professionals like architects) equivalent for artists, since there is no licensing requirement to becoming a practicing artist.  Thus, there are no standard practices or operating parameters on which insurance companies can rely in calculating their risk.  However, an artist’s inability to obtain coverage can make projects involving design services tricky for everyone involved.

Navigating the awkward territory of designing art works, therefore takes a little bit of creativity and understanding as to how a commission contract works. Understanding the way in which the various contract provisions interact and work together to establish the rules of the relationship is key to artists protecting themselves as much as possible.  By paying close attention to the language in other parts of the contract, some additional security against future liabilities can be attained.

1. Attorney Fee Clauses.  It is important to include the ability to recover reasonable costs and attorney fees for the prevailing party so that in the event you are included in a law suit where the design of the artwork may or may not be the actual issue, you have the possibility of recovering some of the expenses you will incur in dealing with such a situation.  Unless attorney fees are provided for statutorily (ie. there is a law that provides that in your particular type of contract attorney fees may be recovered in the event of a dispute), you must have a clause in the contract that allows for this.  Don’t forget, of course, that this is a double-edged sword and that if you are found to be liable for design defects, you could be held responsible for the same costs and fees for the other party.

2. Assignment.  Pay close attention to the commissioning party’s ability to assign the contract and/or the ownership & responsibility in the artwork.  For property owners, this will likely be allowed so that upon the sale of the overall property, the seller can transfer ownership of the artwork along with the rest of the property.  Make sure that all of the duties and responsibilities to which the original commissioning party is obligated in the commissioning agreement, transfer to the subsequent purchaser of the property.  This can be particularly important in matters of ensuring that future owners are responsible for the proper maintenance of the artwork, which will hopefully reduce the likelihood of any problems and potential liabilities arising from the artwork at any level.

3. Hold Harmless.  If possible, have a hold harmless provision in the agreement that absolves the artist of liability for anything less than cases of extreme negligence or criminal behavior.  This could provide some protection in that the artist would have to be found to have behaved with extreme negligence or intentionally and willfully in creating a problem in order to be held liable.  This will likely be a tough provision to have included, as no one likes giving up the possibility of suing in the event liabilities arise down the road.

4. Limits on Liability.  Again, pretty tough to get into a contract, but maybe worth a try.  Such a provision could limit an artist’s liability to a particular dollar amount; to the value of the initial contract; or to some other reasonably logical number.  This could still be too big a number for the artist to commit to, but it could also be a tool to strike a middle ground and make both parties feel like they’re not completely vulnerable.

   Another possibility would be to limit the time period during which the artist is responsible.  Generally, when fabricating and/or installing a work, an artist must warrant a work for a year (sometimes more) after installation.  When dealing with a design-only arrangement, you could try to include a similar limitation.  In essence, the commissioning party would accept all liabilities for design defects after a designated period of time has passed following the final acceptance of the design proposal.

5. Disclaimer.  Another option may be to establish that if in realizing the design, the commissioning party changes the design in any way at all, the artist is absolved of any liability for damages resulting from the implementation of the design.

   An additional suggestion for reducing liability outside of the contract arena is to limit exposure and/or provide some measure of protection by incorporating.  Take advantage as much as possible of the limited liability that a corporation or LLC provides.  While these business entities may add some paperwork to your pile with additional tax filings and bookkeeping requirements, they can also provide a shield against the loss of your personal assets.

   Though insurance companies cannot be forced to provide coverage, as you can see, some other protective measures can be achieved through business solution available to artists.  Never underestimate the value in taking the time to craft a truly artist-friendly agreement.  Whether deciding how to implement contract revisions, or whether forming a corporate entity is in your best interest, it is always a good idea to seek the advice of a knowledgeable lawyer.