Copyright Industry

Percent-for-Art Programs are Creating Opportunities for Artists Across the Country.

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Mark Bradford's "Bell Tower," suspended over the security screening area at Tom Bradley International Terminal at LAX. (Joshua White)

For the majority of U.S citizens, the latest and greatest art pieces are not easily accessible.  Many of the latest and greatest works are lying in storage areas at galleries or museums, rarely shown without an appointment or part of someone’s private collection.  When the art does become publicly available, it is usually in art fairs or at galleries, which tend to be clustered in major cities making it hard for art enthusiasts to enjoy. Yet we all recognize the benefit that the Arts bring to the public. So how can we create programs and public art spaces that foster civic engagement with world-class contemporary art?   The answer seems to be mandating that large-scale construction projects allocate public space and funding fo the Visual Arts.

These ordinances, called percent-for-art programs, are seeking to use public spaces to bring art into the consciousness of a wider public by requiring a fee, usually some percentage of the project cost, on large scale development projects in order to fund and install public art.  That percentage usually ranges from 0.5% to 2%, with most programs (ironically) adopting 1% allocation.  As such, percent-for-art programs have been popping up all over the country, although the details may vary from area to area.  For example, the City of Los Angeles’ 1% for arts program, has developers pay an amount equal to 1% of the construction value of a large-scale project to fund public art at the construction site.  So when the city decided to renovate the LAX airport for $4.1 billion $4.1 million dollars was allocated to public art.  The Tom Bradley International Terminal opened last July with three art exhibits (sen below)

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From left to right: Air Garden, Ball-Nogues Studio, photo by Joshua White, JW Pictures, Inc.; Elevate, Joyce Dallal, photo by Panic Studio LA; Everywhere Nowhere, Sarah Elgart, photo by Panic Studio LA

Percent-for-art programs have been wildly successful in various states thus far, such as Philadelphia, New York, and Los Angeles, and percent-for-art programs have been mandated in over 25 states. There’s even a federal program that’s been instituted and managed by General Services Administration’s Art in Architecture program, which oversees the commissioning of artworks for new federal buildings nationwide by earmarking 0.5% of construction costs. This program has commissioned artworks by both mid-career and established artists like Alice Aycock, Jenny Holzer, and Sol LeWitt, among various others. And since the funds can be used towards both acquisitions and commissioning of new works of art, there are a variety of opportunities for visual artists to exhibit their work among thousands and thousands of patrons every day. However, because there are few norms in the field or understandings regarding the implementation of program initiatives, it’s important to conduct thorough negotiations and craft well-constructed contracts – and those considerations hold true for both the commissioning governmental body and the artist.

Percent-for-Art Programs: How Artists are Chosen

Since each percent-for-art program varies from state to state, it’s difficult to apply any hard and fast rules for artists seeking to present a commissioned project idea or work for acquisition. While every state has their own percent-for-art agreement, the requirements for artist participation often vary. For example, Los Angeles County puts a great emphasis on choosing local artists for their commissioned works, but has very loose requirements for residency – chosen artists can be local, national, or international, so long as the artists “is working in the public realm with demonstrated past experience or proven technical and esthetic ability to successfully create artwork responsive to the site and the community.” In New York, what matters most is whether the artist’s work “reflects the diversity of New York City.” In the over 300 percent-for-art projects commissioned by the New York Department of Cultural Affairs, almost all are mid-career, minority artists.

In most instances, an artist will be chosen by art consultant, who will then present the artist’s idea or work to a specially formed commission, who will determine whether the work is sufficiently site-specific and appropriate to the construction in question. Thus, it’s important for artists to maintain relationships with art consultant professionals and governmental organizations if they want their work to be noticed for a spot.

Legal Considerations for Artists in Percent-for-Art Programs

The rules for percent-for-art projects can seem especially unclear when you consider the various parties involved: the private developer building the construction is essentially throwing down the cash, but (in most cases) it’s the state or federal government that’s deciding how that money will be used – they choose the artist and the work or commissioned project, and they decide what the guidelines of such will be.

In order to ease a bit of the confusion, Americans for the Arts outlined some ground rules in the form of two model agreements, known as the Model Public Art Commission Agreement (Agency), and the Agreement for Commission of Public Artwork between Artist and Non-Agency – Private Entity, which can be a useful tool for artists and those commissioning alike.

One of the most important aspects of a percent-for-art program considers the budget. Sometimes, the percent-for-art ordinances will clearly state what is contained in the budget. In New York City, for example, the policy clearly specifies that the commission must cover the artist’s budget, including design fee, contingency, fabrication, installation, transportation and insurance costs. Typically, the artist is responsible for furnishing the elements essential to the project, though he will be reimbursed or funded for what he needs. For example, an artist will need to furnish all the materials and services necessary for the fabrication of the artwork, which means he or she will need to prepare an estimated budget.

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African-American sculptor Lorenzo Pace created this sculpture on commission from Mayor Rudolph Giuliani in 2000 as part of the Percent for Art Program.

Other burdens that will fall on the artist include the expectation that the artist warrants the quality and condition of the work, guaranteeing that the work is free from defects for a period of at least one year following installation. He must also verify that there aren’t any legal encumbrances on the work that would affect the legality of its placement in the public sphere. On the other hand, the owner of the construction project will typically be responsible for preparing the site and for giving timely approvals.

Furthermore, an artist’s rights generally are protected by the Visual Artists Rights Act (VARA), a federally enacted law that’s also been adopted in certain jurisdictions. This act states that an author of an artwork has rights of attribution and integrity, namely:

  • The right to claim authorship of that work, and to prevent the use of his or her name as the author of any work that he or she did not create;
  • The right to prevent the use of his or her name as the author of the work of visual art in the event of a distortion, mutilation, or other modification of the work which would be prejudicial to his or her honor or reputation;
  • to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation, and any intentional distortion, mutilation, or modification of that work is a violation of that right, and 
(B) to prevent any destruction of a work of recognized stature, and any intentional or grossly negligent destruction of that work is a violation of that right.

It’s important to understand that an artist’s protection under VARA can be waived if not express in the contract, so an artist should expressly outline their rights under VARA if they wish to retain these rights. Since the removal of a work, when done so unilaterally, can significantly damage an artist’s ability to resell and profit from the work, you’ll want to make sure you’re covered.

Copyright Considerations in Percent-for-Art Projects

There are also important copyright considerations that should be outlined prior to an artist commencing on any percent-for-art project. In general, the artist will typically retain ownership of the copyright since he is the creator of the work. The owner of the development, in turn, is granted a license for reproduction purposes. The scope of that license is usually one of the more contentious points of negotiation in the contract since the owner will usually want a widespread license and the artist may instead elect to keep his uses more limited. For example, the owner will likely wish to have his property photographed for promotional purposes, but is this something the artist feels comfortable allowing?

Thus, when artists are entering into contracts related to percent-for-art programs, artists should be sure that they’ve reviewed their rights under VARA and copyright laws to ensure that they’ve negotiated to the best of their abilities.

 

Have you been involved with a percent-for-art program?  Let us know or if you have any other comments or questions, leave them in the comment section below.

 

About the author

Nicole Martinez

Nicole is a writer and law school graduate with a dedicated focus and passion for the arts, and a particular interest in Latin American art and history. Nicole has extensive experience working with art galleries and museums in Buenos Aires and Miami, and explores cultural landscapes across the Americas through her writing.

You can e-mail Nicole at [email protected]

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