Artwork on construction projects – a fine line

27 April 2018 | By John Wevill and Adam Speake

(Image: Dreamstime)

Bespoke artwork and design features on construction projects can prove a drain on time and budget. John Wevill and Adam Speake explain the pitfalls to watch out for.

The addition of a bespoke artwork to a building project can start as the crowning jewel but can become a drain on both time and resources if potential pitfalls are not avoided. Without due care, it may not take long before the jewel in the crown more closely resembles a lump of coal in your stocking instead. 

It is helpful to view the potential problems by addressing each relevant party, using clear contract documents and clear communication.

It is worth noting that artists will not always be as clued up or as keen to engage in a bespoke commission - for example, the creation of a sculpture that is also a living space within a dwelling - as one might expect.

A commissioned artwork may often not be as prestigious or as well paid as their other work. Further, it can be a strain on their time and limit other more effective publicising of their work. 

In light of this, artists may have views on the standard of care and performance to be achieved which are at odds with the client's expectations. A client may well expect an artist's appointment to reflect that of a professional consultant.

Conversely, an artist may well expect the reins to be longer and the remit wider than a tailored professional appointment, particularly in relation to the skill and care required from them and the limits of their liability.

Liability and PI insurance

Negotiations with an artist around liability and professional indemnity insurance are likely to differ markedly from discussions with design professionals.

While commissioned artists should carry public liability insurance, they do not generally have professional indemnity insurance. This is because although the artist is the creative force behind the artwork, the engineering and fabrication of, for example, a large scale sculpture, will typically be carried out by other specialists.

“Negotiations with an artist around liability and professional indemnity insurance are likely to differ markedly from discussions with design professionals.”

John Wevill and Adam Speake

The market standard does appear to favour the artist in terms of limits on liability and standards of care, but where an artist's work moves beyond the simply artistic - and is created with human habitation or physical interaction in mind - clients should be more forceful in demanding robust liability and insurance provisions. 

This is particularly important for commissions that carry important functions, such as Antony Gormley's inhabitable structure at the Beaumont Hotel.

For any sculpture that sits within a larger project, the interface between the artwork and the engineering input required to place the artwork is extremely important and will need to be carefully managed.

Who takes responsibility for devising the method by which to physically place the artwork?  Who is responsible for potential damage to the artwork during transit or installation? The contract documents should clearly delineate the risks borne by the contractor and those borne by the artist.  

The contractual arrangements should also encourage communication and collaboration between the parties as the project evolves. The artwork or the position that the artwork takes in the project may change over time. “On-the-job” changes can result in disagreements, delay to the project or even lead to an unsightly artwork.

Ongoing communication between all parties, and buy-in to significant changes, are crucial in order to avoid disputes.

Client expectations

Managing the client’s expectations will be key. The client’s idea of what the artwork will look like may differ from what is envisaged by the artist, or even what is realistically possible within the financial and practical limits of the project.

It is not worth risking the client’s disappointment when the artwork has been installed and the project is close to completion.  Last minute changes could be costly or simply the client could be very unhappy.

To avoid this, it is worth setting up certain milestones to be achieved by the contractors and the artist and then reviewed by the client.  This will keep the client involved in the process and maintain their artistic input. 

It may be that the client and the artist simply disagree. With a lot of good fortune, the project may turn out just as well as Pope Julius II’s tumultuous commissioning of Michelangelo on the Sistine Chapel.

However, perhaps even they could have benefitted from some well-drafted appointments to appropriately balance the risk. It is most likely that you will too.

John Wevill is a partner and head of construction and Adam Speake a trainee solicitor at law firm Boodle Hatfield

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