Contracts

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
Deliverables
Payment and Reimbursements
Copyright and Intellectual Property
Complying with Government Policies
Insurance

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:

Term of agreement: The start and end date of the contract
Scope of work: This includes the artist’s and municipality’s obligations; a description of the project, residency, creative processes, and/or services; project deliverables; description of other artists or technical consultants who might be involved; travel related to the project; and a project schedule.
Payment terms: Outlines the full financial commitment including the artists fee and amount for project expenses; and payment schedule.
Invoicing: Invoicing and process for payment to the artist as well as other project expenses.
Copyright: This includes ownership of creative work, copyright ownership, and other rights such as the municipality’s right to reproduce images and other documentation. Scroll down for more on this.
Indemnification: The artist holds the municipal entity harmless from any action, lawsuits, or claims arising from the artist’s negligence or mission.
Insurance: The artist may be required to have general liability insurance, scroll down for more on this.
Reporting & accountability: How and when the artist must report on the outcomes of the project; and how partners and project should be credited publicly.

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.

Sample Contract

Creative CityMaking, Minneapolis

Artist-Consultant Agreement

Los Angeles County Department of Arts and Culture

Deliverables

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.

Example

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:

right to claim authorship
right to prevent the use of one's name on any work the author did not create
right to prevent the use of one's name on any work that has been distorted, mutilated, or modified in a way that would be prejudicial to the author's honor or reputation
right to prevent distortion, mutilation, or modification that would prejudice the author's honor or reputation

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.

Example

In 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.


Minneapolis, MN

Creative CityMaking

Office of Arts, Culture, and the Creative Economy; other City departments & local artists

minneapolismn.gov/coordinator/arts/index.htm

The Equity Pulpit, part of a project by D.A. Bullock and Ariah Fine, in collaboration with the Neighborhood and Community Relations Department. Photo: Alizarin Meninnga, Office of Arts, Culture, and the Creative Economy, City of Minneapolis

Part of a creative asset mapping of the Cedar-Riverside neighborhood by artists E.G. Bailey and Shá Cage. Photo: Justin Sengly, Office of Arts, Culture, and the Creative Economy, City of Minneapolis

Tenants participating in a “Hearing Tenant Voices” workshop with artists Mankwe Ndosi and Reggie Prim, in collaboration with the Regulatory Services Department. Photo: Rebecca Crisanta de Ybarra, Office of Arts, Culture, and the Creative Economy, City of Minneapolis

Housing inspectors participating in a “Hearing Tenant Voices” workshop with artists Mankwe Ndosi and Reggie Prim, in collaboration with the Regulatory Services Department. Photo: Rebecca Crisanta de Ybarra, Office of Arts, Culture, and the Creative Economy, City of Minneapolis

Minneapolis’ Office of Arts, Culture, and the Creative Economy (ACCE) leads the Creative CityMaking (CCM) program since 2013. CCM advances the City’s goal of improving economic and racial disparities through systems change, and by creating better engagement and services for communities. CCM places experienced community artists into collaboration with staff in City departments which have included Community Planning and Economic Development, Regulatory Services, Information Technology, Neighborhood and Community Relations, City Clerk’s Office, Public Works, and the Office of Sustainability. Projects have focused both on internal concerns, such as transforming agency culture, and on agency work within communities.

CCM is grounded in ideas of equity. Teams have participated in dialogue that included deep personal reflection and often emotional conversations about the City’s and departments’ historical and current patterns of inequity. They have worked to understand the specific contexts of the department and the community that they engage. Artists have been particularly adept at identifying disconnects between the departments’ intentions for community engagement, and the reality of their practices. These conversations, though difficult at times, created a space for both team and project growth.

Three structural aspects of CCM were key to its continued success:

A strong third-party partner was critical to establishing CCM. Nonprofit Intermedia Arts (now defunct) partnered with ACCE to initiate the program, which was funded by an Art Place grant. Intermedia Arts (IA) was the grant recipient in order to have outside control of resources and safeguard against any potential political interference with the program. IA and ACCE collaboratively designed and launched the program with the intention that ACCE would assume administration of the project. IA served as intermediary between artists and City departments.
ACCE engaged an outside evaluator, Rainbow Research, to produce a Developmental Evaluation of CCM. The evaluators were “embedded” early on and provided ongoing feedback and reflection to teams so that projects could adjust in real time to get the best results. For more on this, see the Evaluation in Action profile.
ACCE developed a plan to sustain the program. While the Art Place grant stretched over the three year pilot phase, ACCE contributed departmental matching funds for the second and third years. They then secured an NEA grant to match those funds. ACCE also hired a program manager to support the partnerships and ensure future capacity for CCM.

See all snapshots

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.

Insurance

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:

Length of the project or event.
Level of risk of personal injury or property damage posed by the project or event.
Number of participants the project or event involves, or the number of participants relative to the size of the site.
Whether the project or event involves transportation and installation of heavy equipment, or the installation of a stage or other temporary structure.
Production costs or estimated value of the project.

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.

Fractured Atlas is a good resource for artists, and provides different kinds of insurance to its artist-members. See their guide to types of insurance that artists might need.

Contracts

Nuts and Bolts

Contracts

General Contract Terms

Sample Contract

Artist-Consultant Agreement

Deliverables

Payment and reimbursements

Example

Copyright and Intellectual Property

Example

Complying with Government Policies

Insurance

Communications