Hello Martha,
Consistent with what you have heard from many of my colleagues here in California, Oakland
does not require the artist to give up copyright, but does ask them to waive (modified) VARA and CAPA rights.
Kristen Zaremba
Public Art Coordinator
Cultural Affairs Division, Economic and Workforce Development Department
City of Oakland, 1 Frank H. Ogawa Plaza, 9th Floor
Oakland, CA 94612
510-238-2155 /
kzaremba@oaklandca.gov
http://www.oaklandculturalarts.org or
http://www.oaklandca.gov
From: public_art_network@americansforthearts.simplelists.com [mailto:public_art_network@americansforthearts.simplelists.com]
On Behalf Of Pontious, Susan (ART)
Sent: Thursday, November 15, 2018 2:29 PM
To: public_art_network@americansforthearts.simplelists.com
Subject: RE: INQUIRY - Artists Copyright and VARA Rights in Contracts
Martha,
Our artist’s retain copyright, and grant the city license to use the image for promotional, educational etc. purposes.
They waive CAPA (Calif. Artist’s Protection Act) and VARA in favor of a negotiated agreement that gives back CAPA/VARA rights, but has more specific language. I’ve copied it here.
22C. Artist’s Moral Rights; City’s Ownership Rights
a. The Commission, having expended considerable public funds to commission the Artwork, and pursuant to its Charter responsibilities, intends to display the Artwork at the Site as originally created by Artist and
to maintain the Artwork in good condition. Public artworks commissioned by the Commission are sometimes integrated into their site, such that they become an integral, permanent and site-specific part of the building’s architecture or landscaped environment
and removal of the artwork would result in significant changes to the artwork and the building’s architecture. City, however, shall preserve complete flexibility to operate and manage City property in the public’s interest. Therefore, City retains the absolute
right to Alter the Artwork in City’s sole judgment. For example, City may Alter the Artwork to eliminate hazard, to comply with the ADA, to otherwise aid City in the management of its property and affairs, or through neglect or accident. If, during or after
the term of this Agreement, City finds the Site to be inappropriate, City has the right to install the Artwork at an alternate location that City chooses in its sole discretion. If the Artwork is free-standing such that it can be removed without significant
damage to the Artwork or the Site, and if the Commission authorizes the removal of the Artwork, the Commission shall take reasonable precautions to minimize Alteration of the Artwork during removal.
b. With respect to the Artwork produced under this Agreement, and in consideration of the procedures and remedies specified in this Agreement, Artist waives any and all claims, arising at any time and under any
circumstances, against City, its officers, agents, employees, successors and assigns, arising under the federal Visual Artists Rights Act (17 U.S.C. §§106A and 113(d)), the California Art Preservation Act (Cal. Civil Code §§987 et seq.), and any other local,
state, federal or international laws that convey rights of the same nature as those conveyed under 17 U.S.C. §106A, Cal. Civil Code §§987 et seq., or any other type of moral right protecting the integrity of works of art. If the Artwork is incorporated into
a building such that the Artwork cannot be removed from the building without Alteration of the Artwork, Artist waives any and all such claims against any future owners of the Site, and its agents, officers and employees, for Alteration of the Artwork.
c. If City intends to take any action with respect to the Site or the Artwork that would Alter the Artwork, other than routine cleaning and maintenance, the following procedures shall apply:
(1) Notice. Where time permits, Commission shall make reasonable good faith efforts to notify Artist at least 20 calendar days prior to authorizing any Alteration of the Artwork, at the last phone number or address
provided by Artist to the Commission’s Collections Manager. Where time does not permit prior to Alteration of the Artwork – for example, in cases of public hazard, accident or unauthorized Alteration – Commission shall notify Artist within 30 calendar days
after such Alteration.
(2) Consultation. After receiving such notice, Artist shall consult with City to determine whether the Artwork can be restored or relocated, and to attempt to come to a mutually agreeable plan for disposition of
the Artwork. Such consultation shall be without charge by Artist unless otherwise specifically agreed in writing. If City intends to remove the Artwork, Artist shall consult regarding methods to minimize or repair any Alteration to the Artwork caused by
such removal and the potential costs of such removal.
(3) Restoration. If the Artwork is Altered, with or without prior notice to Artist, and City intends to maintain the Artwork on display, City shall make a reasonable good faith effort to engage Artist in the restoration
of the Artwork and to compensate Artist for Artist’s time and efforts at fair market value, which may be the subject of a future Agreement between Artist and City. However, City has no obligation under this Agreement to restore the Artwork to its original
condition, to compensate Artist for any restoration work, or to maintain the Artwork on display. If Artist fails or refuses to negotiate with City in good faith with respect to any restoration, City may contract with any other qualified art conservator for
such restoration. During Artist’s lifetime, City shall make best efforts not to display or deaccession only a portion of the Artwork without Artist’s consent.
(4) Removal by Artist. Where time permits, if City intends to take action that will destroy or significantly Alter the Artwork, such as destruction of all or part of the Site, and City determines that it will not
remove the Artwork itself, City shall allow Artist to remove the Artwork at Artist’s expense within 60 days of notice from the City of the need to remove the Artwork, in which case title shall revert to Artist. If Artist fails to remove the Artwork within
that 60 day period, City may Alter the Artwork in any manner, including destroying it, in City’s sole discretion.
(5) Remedies. If City breaches any of its obligations under this Section, Artist’s remedies shall be limited as follows: If City inadvertently fails to provide a required prior notice of Alteration, City will
provide notice as soon as it discovers the omission, and before Alteration of the Artwork if that remains possible. If City Alters the Artwork without providing Artist a required prior notice of Alteration, Artist shall be given the first right of refusal
to restore the Artwork at the same location and City shall make reasonable efforts to provide funding for the restoration. If City funds cannot be made available after reasonable efforts are made to secure such funding, Artist may, but is not obligated to,
restore the Artwork at Artist’s expense. If Artist elects not to restore the Artwork, City may retain another artist or conservator to restore it, or may Alter the Artwork in any manner, at City’s sole discretion.
d. If City Alters the Artwork without Artist’s consent in a manner that is prejudicial to Artist’s reputation, Artist retains the right to disclaim authorship of the Artwork in accordance with California Civil
Code §987(d) and 17 U.S.C. §106A(a)(2).
e. Except as provided in this Agreement, with respect to third parties who are not officers, employees, agents, successors or assigns of City, Artist retains Artist’s moral rights in the Artwork, as established
in the Visual Artists Rights Act (17 U.S.C. §§106A and 113(d)), the California Art Preservation Act (Cal. Civil Code §§987 and 989), or any other local, state, federal or international moral rights laws that protect the integrity of works of art. Accordingly,
nothing herein shall prevent Artist from pursuing a claim for Alteration of the Artwork against a third party who is not an officer, employee, agent, successor or assign of City. City has no obligation to pursue claims against third parties to remedy or prevent
Alteration of the Artwork. However, as owner of the Artwork, City may pursue claims against third parties for damages or to restore the Artwork if the Artwork has been altered without City’s authorization.
Susan Pontious
Civic Art Collection and Public Art Program Director
San Francisco Arts Commission
401 Van Ness Ave. #325
San Francisco, CA 94102
Direct: (415) 252-2241
FAX: 415-934-1022
Sfartscommission.org
From:
public_art_network@americansforthearts.simplelists.com <public_art_network@americansforthearts.simplelists.com>
On Behalf Of Martha Peters
Sent: Thursday, November 15, 2018 1:13 PM
To:
public_art_network@americansforthearts.simplelists.com
Subject: INQUIRY - Artists Copyright and VARA Rights in Contracts
Importance: High
|
|
This message is from outside the City email system. Do not open links or attachments from untrusted sources. |
Dear Colleagues,
The City of Fort Worth’s Law Department is in the process of updating public art contract templates for preliminary design, final design and artwork commission. Under our current contracts, artists retain copyright in their work and have
the opportunity to reclaim their work in the event there is an alteration to the site. The new language being contemplated would have artists waive their copyrights and VARA rights.
In order to illustrate best practices in the field, it would be most helpful to hear from as many of you as possible as to where your contracts stand on these matters. A brief response is all that is requested.
Please note that I have shared a link to the PAN tools on the Americans for the Arts website, as well as the 2005 Annotated Model Commission Agreement with the Law Department.
Thank you,
Martha
Martha M. Peters|Director of Public Art
Arts Council of Fort Worth
1300 Gendy Street
Fort Worth, TX 76107
(817) 298-3025
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