5 Legal Tips for Working with Art Fabricators
So you want to create an ambitious, attention-grabbing public artwork for people from all walks of life to enjoy. Sounds like an easy enough process, right? You design the work, ask a fabricator to produce it, and then voila, in one magical moment the fabricator brings your artistic vision to life. We wish it were this easy for all involved, but unfortunately it’s not that simple. Here are our handy legal tips on working with fabricators for public art projects.
1. Have a written contract in place between the artist and the fabricator
Each public art project has its own personality. That’s because the combination of people involved always varies, as does the nature of the artwork itself. The best way to manage these variations from project to project is to summarise the relationship with your fabricator in writing in the form of a legally binding contract.
Think of your written contract as your project plan. It should set out all of the rights and obligations of the parties entering into the contract with respect to the public art project. Importantly, the contract between the artist and the fabricator should also spell out what happens if the project does not go according to plan. For example, if there is a delay in equipment supply, who is responsible for unexpected costs that might be incurred as a result of the delay?
2. Ensure your family of contracts ‘speak’ to one another
Usually, the contract with your fabricator will be in the form of a contract between you as the artist and the fabricator. There may also be an overarching contract between you as the artist and the commissioner. Think of the relationship between these two contracts as a chain of rights and obligations that are passed on from the commissioner to the artist to the fabricator. The chain should have links which connect one relationship (i.e. the commissioner – artist) to the others (i.e. the artist – fabricator).
On occasion, we also see what are known as “head contracts” for public art projects where the commissioner enters into an agreement with the fabricator to create the artwork, on the condition that the fabricator enter into a separate, but related contract with the artist. Other times we see the commissioner entering into a contract directly with the artist, and separately another contract directly with the fabricator.
These more creative approaches to structuring the relationships of the parties have their complexities, but are usually the most suitable approach for all parties involved. Like the more traditional approach of an overarching contract between commissioner and artist, and subcontract between artist and fabricator, it is important to ensure there are no broken links in the chain of obligations between every party involved.
If you, as the commissioned artist, want to own and have exclusive rights to the copyright in the public art project, then you’ll need to make sure that your contract explains this as clearly as possible.
3. Agree to who owns what intellectual property and who has the rights to use it
As an artist working on public art projects, you are in the business of creating and licensing content that may be protected by intellectual property law (such as copyright, which is a sub-set of intellectual property). However, just because you may see yourself as the copyright owner by virtue of your role as “the artist” in the project, in the eyes of law, the person who is considered to be the author and therefore first owner of the copyright in an artwork is not necessarily the artist.
In fact, copyright law has some very specific rules which govern authorship and ownership of copyright in an artwork, and these vary across different jurisdictions.
In Australia, for example, the author and first owner of copyright in a sculpture is considered to be the person who put the sculpture into “material form.” That said, there are some important exceptions to that rule which may be relevant for you to consider (particularly in the context of public art projects). For example, where the sculpture is created during employment, then the first owner of the copyright is considered to be the employer. Importantly, however, this employment exception does not apply to project-specific relationships, such as between an artist and fabricator for a public artwork commission.
In other words, if you are engaging a fabricator to produce an artwork on your behalf for a specific public art project, it is unlikely that this relationship would be considered an employer/employee relationship. This would mean that the author of the copyright in the sculpture would be the fabricator who put the work into “material form”.
You might be thinking: But the sculpture is merely a copy of the design concept, and I’m the copyright owner in the design concept". Again, here is where understanding the specifics of copyright law are important. Australian copyright law has very low expectations of originality, and novelty is not a relevant factor in determining what is original.
In a nutshell, when it comes to IP ownership and rights to use the copyright in a public art project, your contract with the fabricator is an important tool which you can use to overcome the above-mentioned presumptions around who is the author and owner of the copyright in an artwork. If you, as the commissioned artist, want to own and have exclusive rights to the copyright in the public art project, then you’ll need to make sure that your contract explains this as clearly as possible.
4. Consider using a moral rights release
Do you remember the story of Ron Robertson Swan’s Vault (or The Yellow Peril, as it’s not so affectionately become known) and its dead-of-night, undercover move to the outskirts of the Melbourne CBD from its original site in City Square? Back then, moral rights did not exist in Australia. These days the right to be attributed as the author of the work, not to be incorrectly attributed, and to not have a work subjected to derogatory treatment, are moral rights which are recognised under Australian law. They form a part of Australia’s copyright legislation, and are rights which are automatically granted to the author of the copyright in a work.
Unlike copyright rights, the three moral rights cannot be transferred or waived by the copyright author. This means that if your public art project is put into “material form” by a fabricator, it’s possible that these moral rights would sit with the fabricator, rather than you, the commissioned artist. This is where a moral rights “release” can come in handy. A moral rights “release” is a documented promise from the moral rights holder that they will not enforce their moral rights in relation to the said work. It’s important to consider whether to include a moral rights release when drafting a fabricator contract.
5. Build legal advice on your contract into your project budget
The above-mentioned tips are just some of the considerations you should work through when engaging a fabricator for a public art project.
As I like to say, I’m a lawyer, not a magician, so I can’t predict all of the legal issues that will come your way. What I can suggest however, is that for every public art project you are involved in, you (as the artist) should always include a line item for “legals” in your project budget.
You should not worry that this will be taken the wrong way, or seen as an adversarial process. If the other party does make you feel that, take it as a warning sign. When it comes to working with fabricators on public art projects, it’s not just about putting your money where your mouth is, but putting your legal concerns there too.
If you require legal advice on your public art project, get in touch with us by emailing info@guestworkagency.art.