Leslie Fordham, Acting Director

Broward County Cultural Division

100 S. Andrews Avenue, 6th Floor

Fort Lauderdale, FL 33301

Office: (954)-357-7532

www.broward.org/arts

This looked like it might be of interest to some of you, and especially those of you who are dealing directly with decision making processes.

http://globalurbanhumanities.berkeley.edu/symposium-call-for-papers-for-techniques-of-memory

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

www.fwpublicart.org

Find us on Facebook

Waive VARA (and in CA also CAPA) but the artist should keep Copyright.

ARTICLE 8. WAIVER OF ARTIST'S RIGHTS

8.1          As a material part of the consideration provided by ARTIST under the terms of this Agreement, ARTIST waives any and all rights ARTIST may have with respect to the WORK and any and all works of art produced under the terms of this Agreement pursuant to the federal Visual Artists Rights Act of 1990 (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. section 106A, Cal. Civil Code section 987 et seq., or any other type of moral right protecting the integrity of works of art.  ARTIST expressly agrees that the Work performed hereunder is “Work Made for Hire” under the provisions of 17 U.S.C. section 101.  The provisions of this paragraph shall apply to modify ARTIST’s rights of attribution and integrity as set out in the Visual Artists Rights Act, 17 U.S.C §§ 106A and 113(d) (“VARA”), the California Art Preservation Act, Cal. Civil Code §§ 987 and 989 (“CAPA”), and any rights arising under United States federal or state law or under the laws of another country that convey rights of the same nature as those conveyed under VARA and CAPA, as against the CITY of SANTA CRUZ and its agents. The CITY has the absolute right to change, modify, destroy, remove, relocate, move, replace, transport, repair or restore the WORK [describe artwork/project: mural, sculpture, etc. and medium]: ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ entitled [title of work]: __________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ and located at [identify site, including interior location if applicable],: ________________________________________________________________________________________________________________________________________________________________________________ in whole or in part, in CITY’s sole discretion.

ARTICLE 9 COPYRIGHT

9.1          The ARTIST agrees that the WORK and services performed under this Agreement shall comply with all applicable patent, trademark and copyright laws, rules, regulations and codes of the United States. The ARTIST further agrees that the WORK will not utilize any protected patent, trademark or copyright in performance of work under this Agreement unless the ARTIST has obtained proper permission and all releases and other necessary documents. If the ARTIST specifies any material, equipment, process or procedure which is protected, the ARTIST shall disclose such patents, trademarks and copyrights in the construction drawings and technical specifications.

9.2          The ARTIST agrees to indemnify, defend, and hold harmless the CITY, its officers and employees from any and all claims, damages, suits, costs, expenses, liabilities, actions or proceedings of any kind resulting from the performance of the WORK or services under this Agreement which infringes upon any patent, trademark or copyright protected by law.

9.3         Owner [(or City] has exclusive right to make, and to authorize the making of,  

              photographs and other two-dimensional reproductions of the artwork for any Owner-

              related purposes, including, but not limited to educational, advertising, marketing, public

              relations, promotion, any documentation of Owner’s art collection or other

              noncommercial purposes in print or electronic media. 

From: public_art_network@americansforthearts.simplelists.com [mailto:public_art_network@americansforthearts.simplelists.com] On Behalf Of Cheryl Snow
Sent: Thursday, November 15, 2018 1:47 PM
To: public_art_network@americansforthearts.simplelists.com
Subject: Re: INQUIRY - Artists Copyright and VARA Rights in Contracts

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Hi Martha,

Our contracts do have a VARA waiver, but give the artist the copyright (the City is given the rights to reproduce images of the artwork). Any time an artwork is deaccessioned, the artist is given the first option to take the work back.  Our policy for deaccession can be found here and outlines proper notice to the artist in the event a deaccession process is initiated. Please email me directly if you want more details. I hope this is helpful – and good luck!

Best,

Elise DeMarzo

Palo Alto, CA

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

www.fwpublicart.org

Find us on Facebook

To unsubscribe from this list please go to http://archives.simplelists.com

Thank you, Elise!

Martha

Martha M. Peters|Director of Public Art

Arts Council of Fort Worth

1300 Gendy Street

Fort Worth, TX 76107

(817) 298-3025

www.fwpublicart.org

Find us on Facebook

Hi Martha,

Our contracts do have a VARA waiver, but give the artist the copyright (the City is given the rights to reproduce images of the artwork). Any time an artwork is deaccessioned, the artist is given the first option to take the work back.  Our policy for deaccession can be found here and outlines proper notice to the artist in the event a deaccession process is initiated. Please email me directly if you want more details. I hope this is helpful – and good luck!

Best,

Elise DeMarzo

Palo Alto, CA

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

www.fwpublicart.org

Find us on Facebook

To unsubscribe from this list please go to http://archives.simplelists.com

To unsubscribe from this list please go to http://archives.simplelists.com

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.

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