Dear Shayna,

I am sharing the language I use in contracts below regarding VARA waivers and IP/licensing but I never recommend shared copyrights.  I know this is something that several municipalities do, but it’s not actually a great practice because joint copyright ownership can create challenges down the road. Joint ownership means that either party has an undivided 50% interest in the whole with the only obligation being to share any profits from the work 50/50.  This can easily lead to disputes if one party feels the work should be used in a different manner from the other.  I always spend time exploring why a client thinks that joint copyright is desirable and usually there is some way to better craft the policy that results in clear rights being held by each party.

Maintenance bonds are probably not a feasible option for artists.  This is something that makes sense for construction projects, but is not a normal part of artist budgets.  I would also suspect that without being a licensed contractor, a surety company might not even issue such a bond—similar to the issues of artists not being able to get professional liability insurance.  I would be curious to hear if other people have been successful in incorporating this sort of insurance into public art projects.

 MODIFICATION, DESTRUCTION OR REMOVAL OF ARTWORK. 

a.              Owner shall notify Artist in writing of any proposed significant alteration of the Site that would affect the intended character and appearance of the Artwork including removal or relocation of the Artwork that might result in the Artwork being destroyed, distorted or modified.  The Owner shall make a good faith effort to consult with the Artist in the planning and execution of any such alteration.  The Owner shall make a reasonable effort to maintain the integrity of the Artwork.  If the Artwork cannot be successfully removed or relocated as determined by the Owner, the Artist may disavow the Artwork or have the Artwork returned to the Artist at the Artist’s expense.

b.              The Artwork may be removed or relocated or destroyed by the Owner should the Artist and the Owner not reach mutual agreement on the removal or relocation of the Artwork after a period not to exceed ninety (90) days after written notice to the Artist.  During the ninety (90) day period, the Parties shall engage in good faith negotiations concerning the Artwork’s removal or relocation.

c.              In the event of changes in building codes or zoning laws or regulations that cause the Artwork to be in conflict with such codes, laws or regulations, the Owner may authorize the removal or relocation of the Artwork without the Artist’s permission.  In the alternative, the Owner may commission the Artist by a separate agreement to make any necessary changes to the Artwork to render it in compliance with such codes, laws or regulations.

d.              If the Owner reasonably determines that the Artwork presents imminent harm or hazard to the public, other than as a result of the Owner’s failure to maintain the Artwork as required under this Agreement, the Owner may authorize the removal of the Artwork without the prior approval of the Artist.

e.              Owner shall have the right to donate or sell the Artwork at any time.  Before exercising this right, Owner, by written notice to Artist at Artist’s last known address, agrees to give Artist the opportunity to purchase the Artwork for the greater of the Contract Amount or the amount of any offer which Owner has received for the purchase of the Artwork, plus all costs associated with the removal of the Artwork from the Site, clean-up of the Site and delivery to Artist.  Artist shall have thirty (30) days from the date of Owner’s notice to exercise the option to purchase the Artwork.

f.               This clause is intended to replace and substitute for the rights of the Artist under the Visual Artists’ Rights Act (“VARA”) to the extent that any portion of this Agreement is in direct conflict with VARA rights.  The parties acknowledge that this Agreement supersedes that law to the extent that this Agreement is in direct conflict with VARA.