A contract is a guiding, legally binding document that lays out the terms of agreement between both M/A partners, and sometimes between these partners and a third-party organization. Usually the municipality initiates a contract, most likely using a standard agreement that they apply to all contractors. However, boilerplate contracts may include language and terms that aren’t relevant to artists nor conducive to the nature of creative work. Both partners should pay particular attention during the contracting process to consider what is unique about this particular kind of work, and be open to adapt or amend a standard contract to reflect the project’s spirit and intent.
In this section:
General Contract Terms
Before the contract is drawn up, agree on how to translate the project goals into a scope of work with specific deliverables; if the artist will be considered a consultant or employee; and if they will be paid by the City or a third-party partner. Artists may wish to consult with a third party such as a local arts commission, or a Volunteer Lawyers for the Arts organization. General terms include:
Adapted from Ruri Yampolsky, Public Art by the Book (Americans for the Arts with University of Washington Press, 2005)
See these contracts from Los Angeles and Minneapolis below for examples of M/A partnership agreements.
Municipal contracts often define deliverables in relation to tangible products or services that may not easily align with the nature of the artist’s work. Municipal liaisons and artists should jointly establish benchmarks for artist activities, processes, outputs, or decisions. These could range from an engagement activity with a community or city agency; the development and testing of a tool or strategy; or a product or a service which could take the form of an artwork, a workshop, or a creative plan. Some of the less concrete deliverables, for example a project that is developed organically in response to spending time with participants, might require appropriate documentation and/or reporting to substantiate the work and trigger a payment.
Avoid acting too quickly to define deliverables. Often they become apparent through a research and planning phase. Some M/A projects could benefit from a two-phase contract, one for the planning stage and a second for implementation.
Payment and reimbursements
Municipal payment systems may not be ideal for artist’s cash flow. For example, municipal policies sometimes only cover expenses as reimbursement which requires artists to front their own money. It may not be obvious to municipal staff that individual artists frequently do not have a business that enables them to balance finances until the city makes reimbursements and payment “upon completion.” This is a major difference between artists and other kinds of municipal contractors.
Municipal liaisons need to become educated and advocate with financial staff on behalf of artists for a reasonable payment plan and reimbursement guidelines. For example, City departments can directly purchase materials, be responsible for subcontracts, or find ways to make upfront payments to artists so they can purchase what they need. Sometimes it’s better to work with a third-party intermediary that can take on fiscal responsibilities like payments to artists.
In Los Angeles, local nonprofit Community Arts Resource Services was able to receive and administer government funding more quickly to an artist-in-residence at the Department of Transportation than their partnering agencies could.
Of course, establishing fair compensation for artists in the contract is a critical concern. Read more about this in the Budgeting section.
Copyright and Intellectual Property
Who owns the work? This can be a complicated question when it comes to M/A partnerships. Ownership is codified in contracts through language about copyright or intellectual property. Copyright is the exclusive legal rights of ownership over an original creative work, as well as the rights to make derivative work and to assign those rights to someone else. Copyright upholds an artist’s right to their own intellectual capital. The public art field has led the way in advocating that artists should retain copyright to their work, and this is frequently how public art contracts are written.
If a standard municipal contract gives copyright to the municipality, partners should discuss and negotiate this. Municipalities should allow artists this basic right and artists should assert their claims for ownership. A contract could include permission for the municipality to publish the work for educational, promotional, or noncommercial purposes without the artist giving up copyright.
Copyright can become more complicated when the nature of the artist’s work is highly collaborative, for example if it engages municipal workers or community members in developing the work; or when the work is intended to be adapted by participants.
When does copyright remain with the municipality? If artists are considered to be employees of a municipal agency, copyright law states that employees technically forfeit their rights to any work they create during their tenure. However, one could still make the case that artist’s copyright ownership should be protected by contractual agreement—partners might need to seek the help of a lawyer to work out these complexities.
Also, many municipal contracts stipulate that physical work created by consultants and contractors belongs to the city, especially if the artwork is sited on public property. In these cases a municipality sees the work as an asset under its jurisdiction, oversight, safety regulations, and management. Artists often understand the realities of this responsibility and agree to such ownership.
The Visual Artists Right Act (VARA) protects the artist against infringements on a work of visual art. VARA grants creators of artwork the following:
However, when a government contract requires a VARA waiver (as when a work is sited in a public right of way), artists are rightfully concerned about the loss of protection for their work. Some arts advocates and third-party partners have lobbied to exclude the VARA waiver from contracts. An artist should expressly outline his/her rights under VARA if they wish to retain them.
ExampleIn 2016, tensions arose between Minneapolis and artists participating in the Creative CityMaking program. The artists raised questions about who would ultimately own the work, and who would profit from successful project completion. As a result, CCM established a shared intellectual property rights, and worked to continually promote participating artists locally and nationally. There was additional discussion about how to better compensate artists who worked beyond the 20 hours per week laid out in their contracts with the City.
Complying with Government Policies
There may be municipal policies with which contractors, including artists, are required to comply. Whether or not these are part of the contract, the municipality should offer clear guidelines on these policies, and make their standard Human Resource materials available to the artists during the onboarding process.
Artists participating in Los Angeles County’s Creative Strategist program must comply with County human resource policies and procedures such as the County Policy on Equity, Ethics and Sexual Harassment.
Municipal agencies may require artists to carry liability insurance in the event of damage to a site or personal injury sustained in connection with a project, particularly because projects often happen in publicly owned spaces. The cost and specifics of the insurance package depend on both the requirements of the municipality, the nature of the project, and factors including:
Municipalities typically insure physical artworks only after they have been completed and installed, and for that reason, some artists carry their own insurance while producing an artwork. Some municipalities require artists to show that they hold commercial liability insurance for their work during creation and installation. However, according to Americans for the Arts Public Art Network, since only licensed professionals are able to obtain this kind of insurance, this requirement should be waived for artists who are not licensed.