Getting It in Writing: Negotiating Agreements with Artists at Historic Sites

By Special Contributor posted 05-25-2016 12:33


By Carrie Villar and Anne Nelson

The powerful benefits of activating historic places with the arts have been outlined many times before. But once you’ve identified a potential artistic collaboration, what’s next? How do you convert the creative idea into a project that serves both the site and the artist? How do you get over your fears about potential risks to the buildings, landscapes, and collections that you are entrusted with protecting?

The answer may lie in evaluating risks and managing them by executing loan and artist agreements. While time-consuming and perhaps not as exciting as the creative phase, these legal agreements—and the analyses that go into their drafting—are a critical part of such projects, often only appreciated when something goes wrong.

During the recent installation of artist Yayoi Kusama’s Pumpkin, Glass House staff and a team of professional art handlers took care to protect the grounds, as well as the artwork, during the process. | Credit: Kate Lichota, National Trust for Historic Preservation;

Types of Agreements

A loan agreement needs to be executed for art installations that involve artworks or other objects loaned to your site. If you are a collecting institution, you may already have an incoming loan agreement template, but if you need to create one, sample agreements can be found on the Registrar’s Committee of the American Alliance of Museums website. Loan agreements should record basic information regarding the loan and cover topics such as credit line, insurance coverages, shipping, display, handling, and loan terms. If using a loan form provided by the artist or gallery, review it carefully to confirm that your site can comply with any unique requirements in the agreement.

When a project involves a combination of loaned and commissioned artworks, loan agreements are often included as part of an artist or exhibition agreement, sometimes referred to as the “master” agreement, which guides the broader relationship between your historic site and the artist. While each agreement should be customized to a specific project, the National Trust typically focuses on a few key provisions in artist agreements—the roles and responsibilities of the parties, copyright, and insurance and liability.

A Collaborative Process

While negotiating with artists can be time-consuming, it is a critical process. The first step of bringing artists onsite has the hidden benefit of making you take a look at your site with fresh eyes, not only from the creative side but also by evaluating whether your policies, procedures, and forms adequately address the needs of your site and its current programming. Discussing and documenting the needs of both the site and the artist upfront and in writing can better protect—and maximize the benefits for—both sides.

Luftwerk’s INsite installation transformed the Ludwig Mies Van Der Rohe–designed Farnsworth House with light and sound, creating a new experience for visitors to the site. See a video of the installation. | Credit: Leon Liss, National Trust for Historic Preservation

The next step is to evaluate and assess the logistics around accepting loaned artwork or commissioning a site-specific installation. You may need to relocate collections objects, hire additional security, budget extra staff time for the installation or to host an event, address copyright issues, or pay for liability insurance. Creating a cross-departmental team will help you recognize the areas and operations that could be impacted, evaluate how to manage those impacts with your internal resources and policies, and identify what needs to be negotiated with the artist.

Any collaboration must begin with an understanding and clear description of the roles and responsibilities of each party. Sites should consider who will be responsible for overseeing and paying for the installation and removal of artworks, repairing damage to the property, hosting events, selling (and retaining proceeds from) tickets, and marketing the exhibition. Defining the roles and responsibilities upfront allows both parties to better understand how the project will proceed, which prevents conflict once it is underway.

Copyright and Liability

Copyright is one of the most important provisions of an artist agreement. Typically, the artist retains the copyright to their works but provides the site with a license to use photographs and reproductions . Some artists will provide a broad license that allows use of reproductions for “the general corporate purposes” of the site, but more often than not, artists will want to limit the use to noncommercial or educational purposes. You should identify any additional uses—like exhibition catalogs, postcards, or other merchandise—of the reproductions, discuss them with the artist, and make sure to list them as authorized uses in the agreement. If the artist has not authorized these uses in the  agreement, the site will need to request additional permission for which the artist may in turn request additional compensation. Agreements should also include any conditions you may want to place on the artist’s use of photographs of the art installed onsite, potentially including limitation to noncommercial purposes or simply requiring acknowledgment of the site.

The Boston Sculptors Gallery exhibited at Chesterwood during the 2015 season. Artist Nancy Winship received a regional commission for another work based on her sculpture exhibited at the site. | Credit: National Trust for Historic Preservation

Insurance and liability provisions often cause the most consternation, as many artists do not carry general liability insurance. The National Trust recommends first asking what insurance the artist has available or can obtain, bearing in mind that this may be cost prohibitive for a single project. Second,  check with your own insurance provider to see if the exhibition could be covered under an existing policy (some policies provide coverage to third parties with a written agreement). Finally, consider whether you are willing to accept additional risk.

Further insurance considerations may be unique to the installation. For example, if artworks are installed outside, does the fine arts policy cover damage caused by exposure to weather or by animals or insects? (This may require a detailed review of your existing policy and its exceptions.) If the artwork involves people, make sure workers’ compensation is in place.

Although all of the above may sound overwhelming if you have never done it before, the process is critically important. While you should always try to have legal documents reviewed by your counsel, the variety of templates and examples available online make drafting these agreements achievable even for small organizations.

This post is part of a series of web companions for our Spring 2016 issue of Forum Journal which is available here

Carrie Villar is the John & Neville Bryan Senior Manager of Museum Collections and Anne Nelson is an associate general counsel with the National Trust for Historic Preservation.

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