REUTERS | Ilya Naymushin

Professional appointments: a work of art?

A client recently asked me to draft a professional appointment for an artist who was designing, creating and installing some public artwork at the client’s new development. This turned out to be more complex than I expected.

The creative process

Given the minor nature of the artist’s role, my initial thought was that the client’s standard short form template appointment would be an appropriate starting point. However, on considering the nature of the various activities that the artist would be carrying out, it became clear that a more creative approach was needed.

As well as designing the artwork, the artist was also required to build and install the finished piece. So the appointment would need to include various “building contract” style obligations governing the carrying out of works, alongside the usual consultancy provisions relating to performance of services.

Key considerations

There were a number of issues that my client had to consider at the outset.

Is the artist doing anything other than installing a public work of art?  When I first heard mention of “public artwork”, alarm bells rang. Section 105(2)(e) of the Construction Act 1996 states that the Act will not apply to contracts for:

“the making, installation and repair of artistic works, being sculptures, murals and other works which are wholly artistic in nature.”

So, if the artist was only carrying out these services, its appointment would not need to be Act-compliant.

With that in mind, I asked the client exactly what the artist was doing. If the Act did not apply, there would be more flexibility on payment and dispute provisions, but adjudication would need to be expressly written into the appointment if the parties wished to take advantage of it.

If part of the artist’s services fell within the Act and part outside, we would be in hybrid contract territory. In that event, either the entire appointment would need to be drafted as Act-compliant or two payment and dispute regimes would be needed; one for those services that were subject to the Act and one for the rest. Not a particularly elegant solution. But then, to quote Coulson J in Severfield (UK) Ltd v Duro Felguera UK Ltd, hybrid contracts are by their very nature:

“uncommercial, unsatisfactory and a recipe for confusion …”

As it happened, the artist’s services did not fall within the Act. Despite this, the parties wanted the appointment to be Act-compliant (with express adjudication provisions), for ease of administration and to dovetail with the other contracts on the project.

Goods and materials: As the artist was procuring goods and materials for the artwork itself, it was important that the appointment provided for these to be of good quality and appropriate for the nature of both the completed installation and the overall project.

The appointment also needed to cover the issue of payment for materials and, related to this, when ownership would pass from the artist to the client. Given the bespoke nature of the works, the client was unwilling to pay for materials in advance. It was ultimately agreed that the client would only be required to pay for materials once they had been delivered to the site, accepted by the client and stored safely, at which point ownership would vest in the client. Since the artwork was being constructed off site, this meant that payment would become due only at the point of installation.

Cooperation with the other members of the client’s team: The artist would be installing the artwork during the construction stage of the project. Therefore, we needed to address any interface issues with the contractor and other members of the construction team.

Since the project was being procured under a design and build contract and the artist was carrying out design services, the client’s initial view was that the artist’s appointment should be novated to the contractor along with the other main design appointments.

However, not only was the contractor unwilling to take responsibility for the completed artwork, but the artist was also uncomfortable taking instructions directly from the contractor.

In the end, as a compromise, it was agreed that the artist’s appointment would be retained by the client but the artist would be obliged to liaise with the contractor, co-ordinate its work with the main works and minimise any disruption caused to the main works by its activities.

Intellectual property rights (IPRs): The unique nature of the completed artwork meant that intellectual property rights were a key concern for both parties. As a minimum, the client insisted on the artist waiving its moral rights, so that the client could use images of the finished installation in marketing brochures for the development. The artist was willing to agree to this, provided the client made an official announcement confirming the artist’s appointment in connection with the development and arranged for a plaque to be installed next to the completed artwork identifying the artist as the author.

The client was also concerned to restrict the artist from producing similar pieces of artwork in the future. Whilst the artist was willing to agree to this restriction in principle, ultimately the question of similarity will always be very subjective and it is arguable whether this restriction will be enforceable in practice.

Public liability insurance: In addition to the standard consultant obligation to maintain professional indemnity insurance, as the artist would be carrying out works on site, I suggested to the client that the appointment should also include a requirement for public liability insurance (PL). While the artist was initially reluctant to agree to this, the parties eventually reached agreement on a level of PL cover with which they were both comfortable.

Final thoughts

Don’t be tempted to treat an artist as just another consultant. The works and services required of the artist are likely to be bespoke in nature and may well demand a similarly bespoke agreement. Perhaps not quite a work of art, but still a creatively tailored product of which the author may be proud.

Berwin Leighton Paisner LLP Christopher Skone James

Share this post on: