Public Art and the Law: A Primer

June 18, 2021

By David Jenkins.

In March 2021, a new sculpture of Justice Ruth Bader Ginsburg was unveiled in Brooklyn, NY. The 2nd Circuit awarded the largest damages ever in a lawsuit under the Visual Artists Rights Act to a collective of 5Pointz street artists, Molly Mason is suing a Kirkwood Community College for their treatment of her on-campus installation, and the Brooklyn museum is set to house Nick Cage’s publicly displayed mural with the words “TRUTH BE TOLD” that sparked a dispute as to whether its community considered it an artwork at all.^[1] On April 21, 2021, the Center hosted a discussion with Kenseth Armstead and Sarah Odenkirk about legal and practical realities in the field of public art. As a kind of work which can and has presented itself to communities of all varieties in uniquely affecting and yet vulnerable ways, it should be no surprise that public art brings with it a number of unique legal questions and concerns that artists should be aware of before diving into a project for a public work.

First Things First: Getting into Public Art

Before getting into the weeds of what legal concerns may face an artist creating work for public spaces, an artist has to navigate the process of becoming a part of a public art project in the first place. Public art projects are organized by a wide variety of entities, municipalities, and private actors. As a result, the exact rules and procedures for taking on a public art project may vary greatly both by location and by the kind of group (public versus private) the artist is working with. Two common steps an artist can take to enter into the world of public art in virtually any circumstances: registering for a Percent for Art program, and completing either an RFP or an RFQ.

Percent for Art

Public art projects can often be expensive endeavors as it contemplates numerous participants and public safety requirements. Not only does the artist need to get properly compensated for their work, but also other workers at times need to be hired for large-scale installations. At times local businesses may be disrupted during periods of construction or the artwork may require maintenance over time. These projects, and by extension these costs, are typically undertaken by local governments and entities and must thereby compete for funding allocations from larger budgets. In 1959, Philadelphia created a first-of-its-kind program to ensure that public art projects would be funded in spite of these hurdles: Percent for art.^[2]

Today, Percent for Art is the name given to more than 350 similar programs across the United States which generally have municipalities and other participating entities allocate a specific small portion (often one percent) of their construction, renovation, and project budgets for the purchasing, commissioning, and installation of public, usually site-specific artworks.^[3] Percent for Art programs vary in their specifics from place to place, and exist for both private and public developers.^[4]

If an artist wants to get involved with public art projects in their area, one of the first things they should do is register for their local Percent for Art Program. While the specific requirements for doing so may be at least partially specific to each program, but usually require that an artist submit a resume and images of their existing work to join the Percent for Art registry.^[5] Registration is typically how artists are connected with developers and ongoing projects, and allow artists to be eligible for funding from Percent for Art programs. A database of Percent for Art programs by state can be found here.

Next Steps: The Public Art RFP & RFQ Process

Once an artist has registered with a Percent for Art program and found a suitable project they wish to apply for, the next step is typically filling out a Request For Proposal (“RFP”) or Request for Qualifications (“RFQ”) for the entity putting on the project.^[6] Both forms are generally the formal method by which an artist puts their name into the ring for a public art project, and are submitted to the groups handling the projects or panels designed to review the artists and proposals. ^[7]

RFPs typically ask an artist to develop and submit their own idea for the artwork to be installed, while RFQs instead ask the artist to submit information detailing their prior work, experience, formal training, or other demonstrations of their qualifications for the project.^[8] A project using RFQs in place of RFPs can often be beneficial to the artists applying, as they do not ask an artist to dedicate their time and resources to a developing a fully formed project proposal up front, but rather allow the commissioners of the project to narrow down the field to a group of finalists before asking anyone to submit a proposal, sometimes even offering an honorarium to reimburse artists for the costs of developing the proposal.^[9] As with most aspects of public art proposals, the specific rules for RFPs and RFQs can vary.

Key Legal Concerns with Public Art

While all artists practice their craft amid a broad landscape of legal concerns, concerns which may differ depending on the manner and medium of the artist’s work, public art brings with it a number of unique possibilities for running up against the law. Here are a few of the most prominent legal concerns that may arise for an artist creating and installing work in public places.

Copyright Ownership

The rules and limitations of copyright ownership are almost always a relevant topic for working artists, as copyright protection are the primary way an artist can control the economic effects and benefits of their work.^[10] An understanding of copyright law can be even more vital for artists working on public projects, as the nature of public art can be prone to create situations in which the artist is not the one who owns the copyright in the work.

In regard to visual artworks in general, the default rule for copyright ownership is that a copyright in a work belongs to the artist or artists who created the work, vested in them the moment the work is created, even if the physical work itself belongs to someone else via sale or other means of transferring ownership.^[11] A notable exception to the rule, however, is what’s often called the “work for hire” doctrine. The work for hire doctrine states that when an artwork is created in the scope of employment, the copyright in the work belongs instead to the artist’s employer.^[12]

On its face, this may not seem an immediate issue to a public artist, afterall the doctrine applies to works made by employees, and many public artists would likely not consider themselves the employees of those commissioning their projects. The problem is, however, that whether an artwork is legally considered a work for hire is generally not merely a question of the label used to describe the artist. When a copyright dispute arises, it may come down to factors such as how much control over the artist’s work the commissioner of the work has, how much control over the art itself they have, and whether the artist’s relationship with the commissioner contains common trappings of an employee such earnings salary or working in the commissioner’s space, just to name a few factors.^[13]

Generally speaking, relevant factors would likely still indicate that an artist working on a public project was an independent contractor rather than an employee, but such an artist should also be sure to review the agreement outlining their work on the project to ensure that it does not specify either that they are considered an employee, or that the copyright in the work is not transferred, if the artist wishes to have ownership of the copyright for their public artwork.^[14] Oftentimes, public art contracts will transfer ownership of the physical work to the commissioner upon completion and installation of the piece, coupled with an unlimited license to reproduce the work. Unfortunately for artists, these contracts have very little room for negotiation.

The Visual Artists Rights Act

Nestled within the Copyright Act, the Visual Artists Rights Act (“VARA”) provides added protections for the creator of a visual artwork in the integrity, attribution, and display of their work as an extension of the artist and their reputation.^[15] Public artworks, by nature of virtually always being at least partially controlled by entities other than the artist as well as being left open to the public and the elements of their environment, can often be prone to possible damage, removal, or other alterations and attributions that may lead to a dispute under VARA.

For one, just because the commissioner of a work or some other entity owns or controls the space or structure where the artwork is displayed, does not mean they have the right to alter or destroy the space in such a way that interferes with the art. In a recent landmark case, a group of street artists won a striking victory after filing a VARA lawsuit against the owner of the warehouse on which their work was displayed.^[16] The artists had an unwritten agreement with the property owner which allowed them to turn the warehouse into a residency and display space for street art and graffiti, dubbed “5Pointz,” an arrangement which came to an abrupt end when the property owner ultimately destroyed the warehouse and the art to make way for a luxury development.^[17] The artists’ victory in the suit demonstrated the possible strength of VARA rights, protecting the integrity of the publicly displayed work even where the works had not been directly commissioned by the property owner and had not been subject to a written contract, the property owner could not destroy the artists’ work just by virtue of owning the property.

While the 5Pointz case proved to be a win for artists, an artist may find themselves in a more difficult position asserting VARA rights when the alteration to their work didn’t involve physical changes to the art itself. One of the most famous examples of a public artwork in the United States, New York’s “Charging Bull” statue, was the subject of a VARA dispute when the perhaps equally famous “Fearless Girl” was installed in front of the original artwork.^[18] Arturo Di Modica, the artist behind “Charging Bull,” argued that the “Fearless Girl” was an alteration of his work in that its presence changed the context and message of his original sculpture.^[19] The court determined, however, that change in context did not amount to an alteration under VARA as no physical damage or change occurred to the original work.^[20] As a result, an artist making a public work should be aware that the context of their work may be ever susceptible to change by nature of being in a public space, and that they may not have the right to control or prevent any of that change if it doesn’t physically alter their installation.

Third, the creator of a public artwork may have a claim under VARA if a lack of maintenance or unwanted modification by the commissioner of the work affects the art. In an ongoing lawsuit, artist Molly Mason is suing the community college that commissioned a public artwork from her over alterations to a sculpture of hers including plants being allowed to grow on the work, turning off the work’s water feature, and what Mason calls “reckless and willful failure to maintain the work.”^[21] While it remains to be seen if Mason is successful in her claim, the dispute demonstrates that even changes to a work that fall short of total removal or destruction may be protected against by an artists’ VARA rights, and that the creator of a public work may have the right to ensure the commissioner of their work is properly mianting it over time.^[22]

Finally, one more consideration of VARA that artists creating public works should be aware of is the potential to waive VARA rights in a contract. VARA rights typically stay with the artist of a work even if someone else owns title to the work or its copyright, but an artist may waive their ability to invoke the protections VARA grants them for a public artwork if their contract to create the work specifies that they do so.^[23] When beginning a project, an artist should ensure they understand if their agreement purports to waive any or all of their rights under VARA.

Preservation and Community Response

When an artwork is installed in a public place, its presence will inevitably be felt by the community that lives and works in that space. Even when an artist and their work have been brought to a space via a formal agreement or commission, they may find that the reaction, criticism, or even legal actions of a community may affect their ability to preserve their work as initially installed.

This concept was infamously demonstrated in the case of artist Richard Serra and his public installation “Tilted Arc.”^[24] Serra’s work, a massive steel plane tilted along a slight angle, was installed in the plaza in front of the Jacob K. Javits Federal Building in Manhattan as a result of a commission by the General Services Administration.^[25] After a number of those who lived and worked around the plaza complained about the work, claiming it was obstructive and unpleasant, the GSA voted to remove the work, and in response Serra filed suit under VARA.^[26] The court ultimately ruled against Serra, determining that the GSA owned the artwork as a result of the commission and could remove it from the plaza, after which the work was eventually destroyed.^[27]

The “Tilted Arc” case still serves as an important notice to those who create public artworks. Serra’s project was the result of a similar formal process of review, collaboration, and installation that so many public artworks and created under, and yet his work ended up removed and scrapped simply because members of the affected community did not want the art in their public space. Artists should take care to understand how a community will react to their work, and how its presence may affect them physically or otherwise.

Another, more recent example of public at clashing with a community comes from the recently resolved dispute surrounding artist Nick Cave and his public mural “Truth be Told.” Cave’s artwork, a mural meant to criticize the Trump administration’s spreading of disinformation, was installed under a special permit from a local gallery in Kinderbrook, New York, as a part of an initiative supporting public art and social justice.^[28] Members of Kinderbook’s community, including the mayor and local code enforcement officer, fought to have the work removed and even threatened Cave with up to $200 a day in fines if the work remained up, under the argument that it represented a sign, not an artwork.^[29] The local zoning board eventually took a vote on the work, unanimously declaring that it was a permissible artwork, and Cave’s work remained up in its intended location for the duration of the agreement.^[30]

While Cave’s dispute was ultimately decided in favor of the artist without going to court, it further demonstrates the impact community reaction to a work may have on both the work and the artist. Artists engaging in public projects should be aware that conversations and lawsuits over the continued presence or impact of their work are always a possibility when their work is a part of an active public space.

Conclusion

Undertaking a public art project can require a lot of research and know-how from an artist, both on the processes of getting a project and the legal landscape that surrounds public art itself. An artist should thoroughly investigate whether their locality has a Percent for Art program, and what the local rules and procedures are for it and for the overall application process for public artworks.Understanding what rights are available under copyright law and VARA can make an artist aware of what to look out for both during the arrangement of a contract for a public art project, and how they can protect themselves and their work after it has gone up. Specifically, an artist should be aware of whether their agreement waives or assigns any of their rights or protections, understand if they are considered an independent contractor by the agreement, and get an understanding of the community and space their work is set to be a part of and how they might react. Public art can be an impactful and significant way to enliven and enrich any locale and be a wonderful opportunity for an artist to display their work and engage with the public.When working on public art projects, an artist has to wear multiple hats in order to ensure installation and viewings go smoothly by keeping tabs on what to know and what to look out for as they open their work to the world.

Additional Reading:

• Jenifer Simon, How to Get Private and Public Art Commissions, Art Business Journal (last visited Apr. 30, 2021).
• State Policy Briefs: Percent for Art, National Assembly of State Art Agencies (2018).
• Gene Brockland, A Buyer’s Legal Guide to Public Art, SmithAmundsen (Sept. 11, 2019).
• Nicole Martinez, Can Street Artists Protect Their Work?, Artrepreneur (Aug. 16, 2018).
• Sarah Odenkirk, Public Art Private Development Database, Art Converge Community (last visited Apr. 30, 2021).

Endnotes:

1. See Sarah Cascone, Brooklyn’s New Permanent Statue of Supreme Court Justice Ruth Bader Ginsburg Will See You Now. You Just Need an Appointment First, artnet news (Mar. 12, 2021); Tyler Jett, Artist sues Iowa college over changes to her work: ‘My beautiful sculptures … have been turned into an overgrown planter’, Des Moines Register (Mar. 30, 2021); Louise Carron, Case Review of the 5Pointz Appeal: Castillo et al. v. G&M Realty L.P. (2020), Center for Art Law (Mar. 2, 2020); Taylor Dafoe, Artist Nick Cave’s Controversial Upstate New York Artwork Has Found a New Home at the Brooklyn Museum, Artnet News (Jan. 15, 2021). ↑
2. What is Percent for Art?, Arts & Planning Toolkit (2021); Percent for Art, Philadelphia Office for Arts, Culture and the Creative Economy (Last visited Apr. 29, 2021). ↑
3. Id. ↑
4. Id. ↑
5. About the Directory, NYC Percent for Art (Last visited Apr. 29, 2021). ↑
6. What Are The Major Differences Between Requests For Proposals (Rfps) And Requests For Qualifications (Rfqs)? Should A Public Art Agency Use One Instead Of The Other?, Americans for the Arts (Last visited Apr. 20, 2021). ↑
7. See Understanding the Public Art RFP and RFQ Process, Artrepneur (Jan. 29, 2018). ↑
8. Supra note 5. ↑
9. Id. ↑
10. 17 U.S.C. § 106. ↑
11. 17 U.S. Code § 201(a). ↑
12. 17 U.S. Code § 201(b). ↑
13. Works Made for Hire, U.S. Copyright Office (2012). ↑
14. Who Owns the Copyright for a Public Artwork?, Americans for the Arts (last visited Apr. 29, 2021). ↑
15. 17 U.S.C. § 106A. ↑
16. Louise Carron, Case Review of the 5Pointz Appeal: Castillo et al. v. G&M Realty L.P. (2020), Center for Art Law (Mar. 2, 2020). ↑
17. Louise Carron, Case Review of the 5Pointz Appeal: Castillo et al. v. G&M Realty L.P. (2020), Center for Art Law (Mar. 2, 2020). ↑
18. Irina Tarsis, Copyright Corrida: Weighing in on the VARA Rights of “Charging Bull” and “Fearless Girl”, 26 NYSBA Bright Ideas 2 (2017). ↑
19. Id. ↑
20. Id. ↑
21. Mason v. Kirkwood Cmty. Coll., No. 1:2021cv00027 (N.D. Iowa Mar. 16, 2021); Tyler Jett, Artist sues Iowa college over changes to her work: ‘My beautiful sculptures … have been turned into an overgrown planter’, Des Moines Register (Mar. 30, 2021). ↑
22. See Case Law Corner April 2021, Center for Art Law (Apr. 6, 2021). ↑
23. 17 U.S. Code § 106A(e). ↑
24. Jennifer Mundy, Lost Art: Richard Serra, Tate (visited Apr. 29, 2021). ↑
25. Id. ↑
26. Serra v. US General Services Admin., 667 F. Supp. 1042 (S.D.N.Y. 1987). ↑
27. Id. ↑
28. Taylor Dafoe, Artist Nick Cave Just Won a Bizarre Legal Fight Over Whether His Political Mural in a New York Village Is Actually Art. (It Is), Artnet News (Feb. 4, 2021). ↑
29. Id. ↑
30. Id. ↑

About the Author: David Jenkins was a Spring 2021 legal intern at the Center for Art Law and is a rising third-year student at the University of Texas School of Law. David is currently the President of the Texas Law Art Association and is a Summer 2021 Law Clerk and Doniger/Burroughs in Brooklyn, New York.