Art in Public Space
In what follows, I will try to define public art, discuss some of the legal issues and tensions in its respect, as well as elaborate on the public art commissioning process and financing options.
Maria Boicova-Wynants
IP and Art Lawyer, Mediator, Management consultant
Place. Space. Art
Recently a phrase of Chinese-US geographer Yi-Fu Tuan out of his book "Space and Place" caught my attention. He writes: "place is security, space is freedom: we are attached to the one and long for the other". In the context of art that reminded me of all the different terms used for artistic objects located outside the traditional gallery or museum location. Art in public space, art in public places, art in open spaces, the art of the city, art in the public domain and many more iterations of the term used for essentially the same phenomenon. In this article I would like to start sketching the field, identifying what various facets of art we might be referring to when different public stakeholders are involved, which forms can public art take, what are its main features, and how can it come to life.

To begin with the definition of Prof. Malcolm Miles,
public art refers to "the making, management and mediation of art outside its conventional location in museums and galleries".
Prof. Miles, however, largely focused on art located in city centers, but the concept of public space likewise includes places such as public hospitals, libraries, schools, universities, and even public transportation. All these places belong to the public sphere and all of them have public as the main stakeholder. Other stakeholders include artists, curators, administrative services, governments, funds, various companies, and organizations. In other words, public art concerns many public parties. As a concluding remark about "place vs. space", it is generally agreed that "space" is more abstract and impersonal, while "place" has a meaning. Public art, in its turn, can (and, in fact, should) become a vehicle of turning public space into a public place.

Public art can take various forms. Historically, every city erected monuments and memorials to praise or commemorate certain people or events. Another obvious example is architecture, on many counts decorated with specific architectural elements, sculptures, and frescoes. Street art is yet another form of public art. Sometimes street art is commissioned, other times illegally created, however, it remains a form of engagement between the artist, the public and the community at large. Some communities even have policies, especially around street art. For example, the borough of Hackney (London) has "The Hackney Council Graffiti Policy", which stresses that graffiti is regarded as street art and should not be removed unless the work caused public complaints. Finally, to note that public art is not limited to fixed forms, because street theatre, dance, happenings and other types of performance art can likewise qualify as public art.

So what are the main traits of art that make us call it public? The unique quality of public art is in the fact that it must be site-specific. In other words, there should be some sort of a reference or connection with a particular space. This also distinguishes public art from just art exhibited in public. Public art by its definition is not meant to exist in a gallery space, nor does it belong in a museum. As mentioned already, public art essentially turns public space into a public place, it gives or highlights the meaning of it, and it engages in dialogue both with the public and with the location. Once again, ideally such a dialogue should only be possible in particular conditions of the particular location. Public art enables to see the space differently. Poetically speaking, public art breathes in the soul into space, where it belongs and awakens the place within.

Proceeding to the more practical terms, how does public art come into being? Most of the time, public art is commissioned. There are budgets foreseen and funds available. For example, in many European countries (as well as in South Africa, Senegal, Australia, and several other countries) there are "percent for art" programs. Usually, such programs call for setting aside 1% of the budget for all new publicly-funded buildings to be used for artworks. Other sources of financing include: (1) particular regional programs, (2) public-private partnerships for projects (e.g. in Torino), as well as (3) private financing. The private financing is frequently available from banks and financial institutions but is definitely not limited to them. Also, various private funds are supporting public art initiatives (more about all of that further on).

Nevertheless, having an artist willing to create public art and having funds for its realization is not enough. Public space is by definition public, so it should be up to the public to decide on the acceptability of this or that public art. And the public does decide. The frequently cited example of a public decision against public art was the taking down of Richard Serra's avant-garde Tilted Arc designed for Federal Plaza in Manhattan. It was 36,5 meters long curving wall out of corten steel (a red, rusted-looking type of steel). The placement of the arc in the middle of the plaza was planned by the artist to trigger reflection on the place and on the movement across it. The public disagreed. Thus, after hundreds of complaints to the Regional administration of New York City and some subsequent deliberations, the sculpture was dismantled. Notable is that during the discussion the majority of those participating in it were actually advocating the preservation of the sculpture. Nonetheless, the minority's disapproval was enough. On the contrary, the Bouquet of Tulips by Jeff Koons recently installed in Paris also provoked quite some opposition and yet, it is currently still standing next to the Grand Palais. Another classic historic example of the public disapproval of public art is the Eiffel Tower. The symbol of Paris after its construction was likewise met with ferocious opposition and was initially planned to be dismantled after the World Expo… This brings me to another important public art's feature to mention, namely the duration of its existence. There are temporary public artworks and permanent ones. Different duration requires different types of authorizations and, logically, would need to involve different levels of consideration and public discussion. In practice, however, this is very much community-dependent.

To conclude, public art is meant to enliven the space, turn into the place and engage with the public, who in the end should also be the ultimate beneficiary for the artwork. A community without art loses one of the great opportunities to connect, to engage in discussion and in a way to build its own identity. However, there are, of course, a lot of challenges and a lot of questions, related to something as basic as finding the right idea for the right space, but also to striking the balance of rights for all the parties involved. There are also different copyright issues at stake and many more things to consider around the creation, existence, and use of public art, yet they are to be discussed separately.
Art in Public Space: art might be public, but what about the rights?
Provided that there are numerous stakeholders in what concerns coming into being of public artwork, there are also many tensions between these stakeholders, which can potentially result in conflicts. Two most obvious tensions exist: (1) between copyright and property rights, namely between the artist and the owner or commissioner of the artwork; (2) between copyright and public interest, namely between the artist and the public interacting with the artwork.

As public art is most of the time commissioned, would that mean that the relationship between an artist and a commissioner should be regarded through the prism of "work-for-hire"? And generally speaking, who owns the copyright in public art, and which particular rights are referred to when copyright is claimed?

To begin with, while it might be tempting to regard commissioned public art as a work-for-hire, it is not, as an artist never becomes an employee for the realization of artwork in the first place. Yet, even if it would have been a work-for-hire, the moral rights therein anyway belong to the author. As a quick reminder, copyright includes the moral rights of the author (the artist) and economic rights, which can be (but not by default are) assigned in the course of artwork commissioning process.

The main moral rights of the author are: (1) the right of acknowledgment, namely the right to be known as the author of the artwork and (2) the right of integrity, namely any alteration to the artwork is reserved to the author and is subject to her/his approval. But what about for example relocation or deaccessioning? Usually, questions of the intended lifespan of an artwork, deaccessioning, relocation, same as issues around dealing with potential damage or vandalism are discussed with the author at the time of commissioning of public artwork. On the other hand, the discussing by itself does not imply that the author has the right, for example, to prohibit the relocation or even the deaccessioning of public art s/he created. In November Artnet reported on the brewing conflict between the city of New York and the artist Arturo Di Modico, who is the author of the renown sculpture Charging Bull located in the Bowling Green Park in the Wall Street district. The city administration has decided to move the sculpture closer to the New York Stock Exchange, which the artist is fiercely opposing. How the situation will evolve is yet to be seen, however, I speculate that the sculpture will anyway be relocated to the intended place, as the interests of the public and the commissioner will most likely prevail.

The case of Richard Serra's Tilted Arc already mentioned in the previous article ("insert link "Place.Space.Art") is also an interesting example of the tensions between the artist and the commissioner (as well as the general public). The sculpture made for the square in Manhattan was badly received by the public and following numerous complaints, the General Services Administration decided to remove the sculpture with an initial idea of placing it elsewhere. The artist, Richard Serra, perceived the replacement as destruction and sued the General Services Administration claiming $30 million for violation of his copyright (and First Amendment rights: the freedom of speech). The court decided in favor of the General Services Administration, among others relying on the fact that the economic rights were signed off by the nature of the commission, namely, Richard Serra was not the owner of the sculpture and the decision to move it or not hence was not the author's to make.

While in questions related to the relocation of stand-alone public art the property rights tend to prevail, in cases of destruction (which the relocation of integrated and applied works would almost always result in) it is much less straightforward. Thus, worth recalling is the well-known and heavily debated case of 5Pointz in Queens (New York). In this case, the owner of the old factory building for many years allowed artists to paint graffiti on its walls. The resulting public artworks over the years became a popular tourist destination, but in 2013 graffiti were first painted over and then the whole building was demolished to give way to a luxury apartment project. The street artists whose works were destroyed brought the case to court and were awarded $6.75 million. Noteworthy is that it is not so much the destruction of the street art that caused such an impressive award, but the fact that no opportunity was given to the artists "to document or remove the murals" before they were whitewashed.

In cases when graffiti is not an artwork in itself, but a way of vandalizing another public artwork, it would generally be the property rights owner's responsibility to restore the original artwork in its original form. Otherwise, the author's moral rights in the work's integrity would be violated. But then again, consider the case of Anish Kapoor's Dirty Corner at the Palace of Versailles. It was repeatedly vandalized with graffiti, whereas the removal of the first graffiti-round was done by the artist himself. The second graffiti-round Kapoor decided to leave as is, which was nevertheless opposed by one french politician, who even took the artist to court. The court didn't insist that Kapoor removes the graffiti, but accommodated the request to protect the public against offensive statements (second graffiti contained anti-semitic slogans), by ruling to cover the vandalism up with gold leaf. Ultimately the work was put into storage.

Recently, another public art (and also the one already mentioned in the previous article) — Bouquet of Tulips by Jeff Koons was also the target of vandalism. The plinth of the sculpture was tagged with an offensive indication that the artwork is the "bouquet of anuses" rather than tulips. The graffiti was rapidly cleaned up by the city of Paris, who is agreed to be responsible for the maintenance of the sculpture.

Generally speaking, the public has the right to object the public art and while the artist probably will not have the means to prevent relocation or even deaccessioning of public art s/he created on commission, s/he nonetheless, has the right to at least be properly notified in advance. In determining the balance between copyright and property rights, one needs to take into account that copyright has two facets: the moral rights, which by default belong to the author, and the economic rights, which in case of the commissioned public art will most likely belong to the commissioner together with the final say on the destiny of public artwork. This does not mean, however, that having the economic rights allows to disregard the moral rights of the author, nor that would be a fair practice. Therefore, a lot of questions related to the handling, maintenance, intended lifespan, potential damage repair, and the future relocation (if any) are usually discussed already in the course of the commissioning process.

An interesting issue related to public art is also the right of reproduction of the public artwork, namely the right to take pictures of public art for commercial and non-commercial purposes, including the much-discussed freedom of panorama provisions. This is what is to be discussed next.
You can admire it, but can you freely share your admiration with the world? Public art and freedom of panorama.
To begin with, photographing artwork is a way of reproducing it, while the exclusive rights to reproduce the artwork belong to its copyright owner. Another exclusive right of the copyright owner is to create derivative works based on the original artwork. If the artwork is, thus, three dimensional, then creating a photograph could be perceived as a creation of a derivative work. This, as I have just mentioned, is an exclusive right of the copyright owner. Does it mean that every time one takes a picture of the public artwork, s/he violates the copyright owner's exclusive rights? The answer is not so straightforward. In what follows I will try to explain the question in a bit more detail, providing a general overview of the matter and citing some interesting legal cases to further reflect upon.

First of all, to set things clear: photographing public art is always allowed. The problem might arise, however, not out of the mere fact of taking a picture, but rather related to the subsequent use of that picture. In this respect, like it is frequently with all legal matters, whether it is allowed or not, it depends. Different countries around the world have surprisingly different regulation in what concerns the public art and the right of reproduction thereof. Moreover, even in the (seemingly) single market of the European Union, the regulation of this issue is rather uneven, to say the least.

When one discusses the reproduction rights, the concept which comes into light the most often is freedom of panorama. In a nutshell, freedom of panorama is a provision permitting taking photos (and/or videos), creating paintings (sketches, etc) of buildings, sculptures and other artworks that are permanently located in a public space, without being accused of infringement of copyright. That is, of course, a very broad definition and it does not include the limitations and exceptions, while they are, in their turn, the subject of heated debates.

The EU Directive 2001/29/EC (also known as the Information Society Directive) provides for the possibility of introduction of a freedom of panorama clause, however, leaves it up to member states to decide on the matter. In other words, if the member state decides not to introduce a freedom of panorama exception at all, it is free to do. If the member state decides to include an extensive list of limitations, or on the other hand a list of particular applications only, it is likewise free to do so. However, given that the modern trade (communications, education initiatives, etc) largely happens across borders, this creates quite a confusion.

Thus, in countries like France and Italy, there is no concept of freedom of panorama. In the case of Italy, it is even not only the matter of copyright. The Italian Code on Cultural Heritage and Landscape assigns the Ministry of Arts and Cultural Heritage with the power to license all reproductions of public architecture and sculpture. Articles 107 and 108 thereof require asking proper authorizations and paying a fee to the relevant authority. In other words, the use of a picture of the sculpture of David (even though Michaelangelo's copyright is long expired) for commercial purposes would not be allowed (and even personal purposes might not always be exempt), because it falls under the provisions vis-a-vis the cultural heritage protection. On the other hand, laws in Germany and the United Kingdom are on a completely different side of the scale. Thus, the concept of panorama freedom ("panoramafreiheit") has been introduced in the German law since as early as 1876. This concept is present also in the UK Copyright, Design and Patents Act as of 1988, and even applies to the interior of public buildings. In many other countries, like Denmark, Spain, etc. freedom of panorama is introduced, but limited to private and non-commercial purposes.

A brief comment on the later, as the "commercial/non-commercial purpose" concept, has been mentioned a couple of times already: generally speaking, non-commercial use of pictures is allowed. The complications, as always, arise out of the fact that there are no "general situations". Thus, one of the landmark Swedish cases related to taking pictures of public artworks involves Wikipedia. In October 2012 sculptors Claes Oldenburg and Coosje van Bruggen demanded the Wikimedia Foundation (owner of Wikipedia) to remove 59 images of their sculptures from the Wikipedia website. To note, that all sculptures were on permanent public display around the world and they were made available at a non-commercial website, Wikipedia. The findings of the court were that because the photos are put online in a publicly available database that allows others to use them also for commercial purposes. Such a conclusion of the court is in fact alarming because of the ignoring of the inherent non-commercial objectives of Wikipedia. By the same logic, potentially also photos shared on private social media, for example, Facebook feed (provided the post settings are made "public", or even, actually, in the restricted "friends only" option) would allow someone to use them in commercial activities. Hence, "commercial/non-commercial" differentiation is rather fluid.

An interesting case is also Radford vs Hallensteins Bros Ltd, considered in New Zealand. In that case, J. Radford (a sculptor) created three sculptures to be placed in a public park. The Hallensteins is the clothing retail chain, which sold t-shirts featuring photos of Radford's sculptures. Thus, the essence of the dispute was about the commercial use of the two-dimensional reproduction of three-dimensional public artwork. One might believe that the conflict was decided in favor of the sculptor, as generally speaking the reproduction rights belong to the copyright owner. However, there was a twist in this case. The court concluded that the sculptures created by Radford over the years acquired a landmark status and that is precisely why the public interests were believed to be prevailing in this case. The bottom line is, the court held that in the fact that photos of sculptures are used for commercial purposes (printed on t-shirts) there is no infringement of the sculptor's copyright.
Now, would that work for the Eiffel Tower? An answer to this question is also: it depends.
First, talking about France, there has also been a case on the use of pictures of public artwork. The pictures of the square in Lyon with fountains created by Daniel Buren and Christian Drevet were used on postcards, without their permission and without mentioning the artists' names. In this case, the court did not side with the artists, reasoning that their public artwork is not the central element of the photo of the square.

Coming back to the Eiffel Tower, technically speaking, since the creator of the Eiffel Tower died in 1923, 70 years later, thus, since 1993 there is no more copyright in the Eiffel Tower as such. However, there is another artistic element added to the Eiffel Tower in 1985, making it once again an object of copyright protection. The twinkling lights visible on the Eiffel Tower at night are considered to be a separate artwork, wherein copyright has not been expired. Currently, the SETE (La Societe d'Exploitation de la Tour Eiffel) is the copyright holder in connection with the twinkling lights on the Eiffel Tower. This means that any use of the photo of the Eiffel Tower at night should first be allowed by the SETE.

To give some more food for thought (or better for discussions), the Columbia Pictures has been successfully sued by the Archidiocese of Rio de Janeiro for the unauthorized use of the video footage featuring the statue of Christ the Redeemer. Recently also Mercedes Benz has been in the news for the legal battle with Detroit street art artists over the commercial the car manufacturer produced. In that commercial Mercedes GL 500 is driving around on the streets of Detroit with murals flashing in the background. The outcome of the case is still not known at this point, but it might turn to be a very important case in the context of determining the rights vis-a-vis depiction and use of public artworks.

In 2017 the European Commission published a report on the public consultation on the panorama exception. The majority of the respondents stressed that they lack clarity as to whether their actions are legal or not. As mentioned already, the current situation creates a lot of potential confusion and impediments to the development of a digital market. Consider, for example, the MOOCs (massive open online courses), which didn't even exist before not that long ago. The use of images for educational purposes is non-commercial by definition and that is, once again generally speaking, allowed. However, what one cannot forget is that online education most of the time happens on commercially minded platforms. The income online can be generated in various ways, be it from the direct sales of particular digital content, or via advertising or the sale of the end-user data or in numerous other ways. Therefore, it becomes increasingly difficult to differentiate between what is commercial and what is non-commercial. Moreover, should one be guided by the Wikipedia case in Sweden, that would create a significant impairment to the further development of such initiatives as MOOCs and alike.

In what concerns the tensions between the copyright owner and the public in connection with public art, it is worthy to stress also that one of the ideas behind public art is to foster the public's reflections and discussions. Such discussions can take place through education, commentary, critique, but also commercial activities. In that sense, the legal obstacles for engaging in such discussion would impair the ability of the public to engage in a dialogue. There is another argument in favor of full freedom of panorama and removing the "commercial/non-commercial" differentiation, being that the underlying idea of copyright laws is to protect copyright owners' commercial value of their works. It should not be used as a vehicle to obtain further revenue in new markets, which moreover, doesn't affect the initial value of the artwork. Whether the above-mentioned arguments hit home with you or not, it is nonetheless a given that different legal norms in different states regarding the same activity, which in the reality of the modern world is most of the time cross-border, creates the confusion. Such a situation is an obstacle to the realization of the Digital Market Strategy (intended by the European Union) and impedes the growth maximization in the digital economy.

Nevertheless… what about the artists? Does it mean that if an artist created a public artwork, s/he has to allow everyone to profit out of it, also purely commercially? How to strike the right balance between the rights of an artist and the rights of the public at large? Those questions are fair and they warrant proper attention and further regulation. Besides, the regulation can no longer be confined to the national borders, as more and more activities extend beyond them.
How to get that sculpture to be put in the central square? Commissioning of a public artwork
Commissioning process in different countries has certain variations and even more so, there is nowhere a procedure carved in stone. However, the general lines of commissioning process for public artworks, as well as principles and considerations to take into account remain alike whether "this desired central square" lies in Amsterdam, Sydney, New York or London. In this article I would like to go through the commissioning process of public artwork, highlighting the important steps and within them some attention and discussion points. As mentioned already, those are general considerations, that may (and do) have nuances in the particular country, region or even neighborhood.

To begin with, theoretically, any citizen or a group of citizens can initiate a public artwork. Most of the time the initiator (or better — the commissioner) is not a single physical person, but rather a fund, an association, a public or government body, or a group of artists or citizens. In other words, whoever has a vision.

It all starts with a vision. Public artwork, as I said in the first article of this series, ideally is made for a specific location. This is especially true if the artwork is to be permanently put in a given location. There must be a link with the surroundings, connection not so much physical, as more essential. Public art is supposed to turn space into place. Therefore, precisely described vision is an essential starting point for the coming into being of public artwork. Good questions to ask at this stage are why the art project is to be realized and what might it mean in this particular context? Usually, these questions are well laid down in a brief, which also contains the context, description of the site and its constraints, anticipated scope of the work, selection criteria for an artist, submission requirements, as well as an anticipated level of involvement/engagement of a local community, etc.

In case the initiative of creating a public artwork does not come from the artist him- or herself, but rather from other interested stakeholders, there are several ways of commissioning an artist. All of them have their pros and cons both in terms of the access to talent and in terms of the costs for the commissioner.
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First of all, one could invite a particular artist. This direct invitation to create a public artwork usually involves an initial budget for an artist to complete the initial research and design based on the (vision) brief. Thus, even before the artist creates a final proposal for an artwork, s/he is already working and already being paid by the commissioner. Such a specific invitation to the specific artist is useful in case the vision of the commissioner is very much linked to the very specific artistic "touch". For example, if the artist is known for a particular type of works and the commissioner wants to have exactly that type of work realized, it might make sense to contact this particular artist. Aside from the costs, the con of this approach is, of course, that there are no options, no possibility to see different perspectives, nor to engage in a dialogue with a diverse group of artists.
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The second option would be to open up the competition to several, select artists. In this case, there is a possibility to receive various artistic solutions and ideas to choose from. As with the first option of inviting a particular artist, in the case of the limited competition, artists invited to participate in making proposals are receiving a certain fee from the commissioner.
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Finally, the third option would be to have a competition, open to all interested parties. In this option, the commissioner of public artwork has the possibility of tapping into the vast creative pool of talent. Usually, in practice, the third option is realized in two stages. In the first stage, all interested artists have access to a brief (a general description of the site and the vision for an artwork), and they need to submit their letter of interest, resume and examples of relevant previously made artworks, showcasing their skills, talents, and potential. Based on this submission the selection of an artist (-s) is made. In the second stage, the selected artists are then provided with a more detailed description of intentions and wishes of the commissioner, and against a small fee are asked to submit their more detailed proposal (the preliminary proposal). This stage is pretty much like the second option of the limited competition.
The preliminary proposal stage in practice lasts for about two to three months. During this period the artist (-s) examines the location, performs the additional research and creates a detailed proposal. "Detailed" at this stage does not yet include the completely worked-out budget, however, the preliminary proposal should give a pretty good overview of what the commissioner might expect as a result. Frequently at this stage, there is also an interaction between the artist and the art commission (set up to realize this particular public artwork), public (in case there was a decision to set-up a public discussion group), and/or other stakeholders. The preliminary proposal stage is usually based on a separate contract between the commissioner and the artist. The object of this contract is the creation of the preliminary proposal.

Upon the approval of the preliminary proposal, the artist has to deepen it further to complete the final proposal. In practice, frequently the final proposal and the actual realization of a public artwork are subject to one agreement, however, the parties could also decide to split those two stages into two separate agreements. On the content side, the final proposal has to address both the content of an artwork and all the practicalities. Thus, the technical construction calculations, an estimate of risks, health and safety considerations, concrete agreements with contractors (if that's the case), budget, insurances, all the necessary information for requesting the permits, planning of the delivery and the worked-out requirements for maintenance — all this needs to be included in the final proposal.

In terms of permits, while it is usually a responsibility of the artist, the parties might agree that it is the commissioner who is going to secure the necessary permits. In this case, the artist must provide all the information and documentation necessary for applying for the permit. An important discussion point vis-a-vis the division of responsibilities is maintenance. Questions on potential damage repair, graffiti, as well as maintenance in general, are to be discussed and agreed upon at the stage of the final proposal.

After the public artwork has been completed and delivered, the commissioner becomes its owner. To note that the copyright in an artwork still a priori belongs to the artist. The artist likewise (if not agreed upon differently) remains the owner of all the sketches, drawings, designs and scale models that were created in the course of the commissioning of public artwork.

Above I provided the general description of the public art commissioning process, however, as mentioned in the very beginning, in different areas (countries, regions, cities, neighborhoods) there are certain peculiarities. Some cities have a well-described public art policy, which provides a detailed account of the vision and intentions of the city vis-a-vis public art located therein. Therefore it is advisable to explore the guidelines of the particular location of interest. Of course, also the commissioning process as such is not the only way how an artwork can be "put in the central square", as the artwork can just be bought from the artist and placed in a location. This undoubtedly saves time and effort for all parties involved. On the other hand, unless such artwork is a surprisingly perfect fit for space, it will be subordinate in quality compared to the artwork commissioned and created for this particular context.
Show me the money: How is public art financed and what exactly are the costs to bear in mind


In the last part, I would like to briefly talk about the financial side of the public art commissioning process. In particular, I would like to put together the costs, which are to be taken into account at every step of the public art commissioning process and to sum up the possible sources for financing these costs. In other words, I am going to focus on two main questions: (1) what is the money needed for and (2) where can the money come from?

What for?

The costs associated with the commissioning of public artwork arise already at the initial stage of the preliminary proposal. The associated costs are the research costs; fee for the artist (or artists); potentially travel and lodging costs for the artist (in case s/he is required/needs to travel to the site); fees for the members of the art committee, art expert(s); expenses related to the establishment/management of a public discussion group; costs associated with fundraising activities (should they be required). All those costs are the financial responsibility of the commissioner and need to be budgeted for.

Also in the subsequent stage — the final proposal — the commissioner has to bear the respective costs. Some of the costs already listed above come back also at this stage. For instance, travel and lodging costs; fees for the members of the art committee and art expert(s); expenses related to the public discussion group. Also fee for the artist is to be budgeted for. Additional costs to potentially take into account at this stage are the research costs, which for the final proposal tend to be more extensive. Costs related to the creation of the scale model(s) and costs related to eventual communication and education linked to public artwork are other positions to include in calculations.

Finally, in the realization stage, which is frequently the responsibility of the artist, the costs to be foreseen are materials needed for artwork itself and materials required for production; additional investments related to the installation of public artwork (sometimes there might be a need e.g. for foundation strengthening or alike); insurances; permits; amenities, such as electricity, water, light, perhaps heating; security (temporary or permanent); fees to be potentially paid to the third parties for realization/installation of artwork; possibly project management costs; transportation. All this in addition to the permanent costs related to fees for the artist, art committee, art expert(s), public discussion group et.c.

Costs need to be foreseen also looking into the future, namely maintenance costs, costs associated with dealing with potential vandalism, et.c.

Therefore, aside from mere costs for the marble to create a statue and for "Michaelangelo" for the process of creation, public artwork commissioning involves a range of other associated costs. All of them require to be budgeted for public artwork to be successfully realized.

Where from?

There are different ways of how public artwork can be financed. Financing can be private, where a fund, a company, a group of individuals or even one particular wealthy individual (patron) is taking on all, or at least some of, the expenses related to coming into being of public artwork. Such a private individual could theoretically also be the artist him(her)self. Some artists use proceeds from gallery sales and other artistic activities to fund their public art projects. This is not the most common funding scheme, however, it can provide a range of benefits for the artist, some of them being visibility and potentially greater impact which his or her art can achieve by virtue of its public nature.

Another financing possibility is crowdfunding, where not just a group of artistically minded individuals, but the general public is involved in fundraising activity. Although this is not the only way to crowdsource, on a platform like Indiegogo there are frequently some artistic projects asking for crowdfunding.

Finally, financing could come from public budgets. Also here, financing can be fully public, or be a form of public-private collaboration.

The most obvious form of public funding is an art budget foreseen in a general state or a city budget. Sometimes there are special decrees for supporting art, sometimes there is just some money put aside for the purpose. Another form of public funding is percent-for-art programs. Percent-for-art programs guarantee that there is a funding stream for public art initiatives also in the absence of money for that purpose, for example, in a city budget. In essence, such programs require a certain percent of the construction budget, usually for buildings and large-scale projects, to be put aside to fund and install public art. The origins of this initiative date back to the first half of the previous century, where, for instance, in Finland percent-for-art program has been introduced shortly before the Second World War. Currently, percent-for-art programs with different nuances exist in many cities and regions around the world.

In some cities, there are also public funding programs other than percent-for-art. For example, in Houston, in American Texas, one of the sourcing for public art comes from the hotel/motel tax. In another US city, Phoenix, one of the sources for art funding is revenue from the state lottery. National Lottery Project Grants for art exist also in the United Kingdom. Those programs are different in the way where the money comes into the public budget in the first place, however, they are all types of public funding schemes.

Therefore there are numerous ways how public artwork can be funded, many potential avenues to explore. In some places, there are clear and straightforward ways to get financing, in some other, a degree of creativity is required, however, most of the time, possibilities do exist and just need to be investigated. I want to conclude with the quote from Forbes article: "...public art can physically and mentally change a child's upbringing. According to the U.K.'s All-Party Parliamentary Group on Arts, Health and Wellbeing, after engaging with the arts 82% of people in deprived communities in London enjoyed greater well being, 79% ate more healthily, and 77% engaged in more physical activity". Therefore, wherever the money comes from, investing in public art gives a very high societal ROI (return-on-investment) and for the sake of all of us, public art must find its way to the public.
(c) Maria Boicova-Wynants, 2020
Should you have any inquiries about the legal or practical issues related to public art, or should you wish to discuss potential cooperation, please feel free to drop me an e-mail at maria.boicova@gmail.com

Maria Boicova-Wynants
IP and Art Lawyer, Mediator, Management consultant
(c) Maria Boicova-Wynants, 2020. Texts first published at artlaw.club
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