Sarah Conley

Interest in copyright issues has changed dramatically in the last 10 years due to more awareness of the potential value in intellectual property. No doubt much of the new focus has trickled down from the digital development of corporate entities better able to direct resources to intellectual property protection than the average artist. The rise in popularity of hedge funds collecting fine art also contributed to the growing consciousness of the value of protecting creative works. Certainly, some creative works serve the artistic and scientific community better if they are freely available for use and part of the public domain. And those who wish to purposely place their work into the public domain regardless of the communal value should be free to do so. However, intellectual property ownership is often one of the few things artists can use as currency in negotiating compensation for projects. Thus, it is imperative that artists do what they can to maintain ownership of as much of their intellectual property as possible.  

At the same time, there remains a need to balance artists’ interests with the practical realities of working with municipalities and other private parties in developing sustainable public art practices. Confusing matters is an epidemic of fuzzy understanding about the nature of intellectual property ownership and what it really does for anyone. In general, when dealing with public art matters, it is not the actual ownership of the copyright that is ultimately so crucial to the commissioning body (thus, I like to see it remain with the artist whenever possible), it is the ability to control the display and maintenance of the work itself during the life of the piece. The likely issues to be faced by the public art community more often pertain to the Visual Artists Rights Act component of the copyright law, which protects artists’ moral rights of treatment of the artwork and attribution. While there is principled justification for artists not being flexible about copyright ownership, practically speaking, copyright ownership in a broader context really only makes a difference within the public art context when there are merchandising issues at stake. Ultimately, it is almost always far more important to establish how the artwork and the artists’ reputation will be treated over time rather than whose name appears on the copyright registration form. The more relevant discussions in contract negotiations therefore should address issues like ongoing maintenance of the work; what happens in the event that the location where the work is sited is remodeled, repurposed; or it otherwise becomes necessary to move or remove the work altogether. Certainly giving up one’s copyright interests to the party acquiring the work is a quick and clean way to absolve the acquiring party of any obligations under any part of the copyright law. But, it is definitely preferable to achieve a more palatable balance without stripping copyright ownership from the artist as a prerequisite for the artist’s participation in public art projects. Now that copyright issues have made it onto almost everyone’s radar and into most commissioning contracts, it is time for public art participants to become more sophisticated in their knowledge and application of the laws. It would be great if communities were able to retain specialized counsel to assist in developing better public art policies rather than rely on the general knowledge of even the most competent city attorneys. However, as such specific attention to public art matters may not be feasible in many instances, increased sophistication about intellectual property will most practically come through open discussions, which is why everyone should eagerly participate in the Contracts Webinar tomorrow (April 13).