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.#PreservationTools #Legal #art #HistoricSites #JournalEnhancedContent