Detailed Discussion

Public art refers to art that is made with the specific intention of being situated in the public domain, often outside, and intended to be accessible to a wide audience. It may be commissioned by developers, local and state government, property owners and managers, or other groups.

Public art can be funded through:

• public or private grant schemes for artist or community-initiated projects

• ‘percent for art’ government policies 

• privately funded commissions

Public art includes a wide range of art forms, such as: 

• free-standing sculptural artworks 

• artwork integrated into the fabric of architecture, landscape, urban spaces and public infrastructure

• temporary or ephemeral art

• murals and street art

• multimedia installations involving digital platforms, lighting, projection or sound

• performance works and other socially engaged and artist-led participatory processes 

Public art may be site-specific, with the artistic vision of the project drawing from and adding to the meaning of a particular site or place. Temporary public art is a durational or ephemeral artwork which is exhibited, installed or performed in public space for a specified amount of time. Temporary public art is designed to leave no permanent structures, alterations, fixtures or fittings.

Artists and those who commission public art both have rights. They have responsibilities to each other and to other stakeholders.

Public Art Models

Acquisition

Models of public art acquisition include:  

• commissioning new work from an artist or team 

• direct purchase of existing works 

• lease, loan, donation or bequest of existing works

Commissioning

Models of commissioning include:

• expressions of interest, an open competition where artists apply and are shortlisted

• limited tender, which involves selecting suitable artists to register their interest

• direct commission, inviting a specific artist to undertake a commission

• register of artists, which identifies suitable artists for future projects

For more information, see Commissioning New Work (Non Acquisition).

Artistic Authorship

Models of artistic authorship include individual, collaborative, community consultative and community participatory.

Community Engagement

Many public-art projects have a community engagement aspect. An effective brief will define the type of community engagement being requested by the commissioner.

Community engagement projects may operate across one or many of these dimensions:

• Community project: the project itself is seen as a form community engagement by the commissioner because of its presence in public space 

• Community direction: the scope or direction of the project was shaped by community engagement processes which the commissioner wants the artist to draw on or refer to

• Community consultation: the brief requires community consultation or feedback on one or more elements for project design development

• Community participation: the project may require some participation, where opportunities exist for community members to help create or design elements of the final work which the artist produces

• Community facilitation: some projects seek artists to fulfil the role of facilitator for artworks that the community develops through participation 

Key Issues

• First Nations First As works are located on Country, First Nations communities have a particular stake in the outcomes of public art decision-making.

• Community Engagement The community engagement expectations and responsibilities of each party are often unclear and the brief fails to outline the required model of community engagement.

• Respect and Fairness The time and resources artists require to complete each stage of a project should be recognised. Artists also have the right to be paid properly and promptly for their work and to have their intellectual property and moral rights respected. 

• Transparency Expectations, decision-making processes and contractual arrangements should be clear. Information should be shared openly and agreed policies and strategies followed. The project brief, processes, budgets, fees and the roles and responsibilities of all parties should all be clearly set out and understood.

• Timelines For temporary public art works, schedules are typically short – between six weeks and six months. This increases the pressure on artists when managing contingencies. Timelines for permanent public art can range from months to years. Changes to timelines at all stages of projects, from EOI through to the development process should be collaboratively negotiated and communicated clearly, not imposed.

• Templated contracts Contracting is often rushed, with little capacity for negotiation, using standard agreements that are not adapted to the specifics of the project. 

• Site specificity When creating site-specific public art, the audience should be considered and consulted. An artwork built for its site is also developed for its public, by contributing to a sense of place, to the values its intended audience holds about the site, and to aspirations for the location articulated by a commissioner or community.

Consideration should be given to the Australia Council's Protocols for Using First Nations Cultural and Intellectual Property in the Arts through consultation with Traditional Custodian groups. This should involve consultation at all stages of the commissioning process as well as access to, participation in and representation within public processes. It includes consultation over the proposed site of an artwork and participation in the selection panel for the artist and artwork. 

When consulting with First Nations communities or commissioning work from First Nation's artists, ensure Traditional Custodians of the land where the work is installed are consulted particularly in relation to the relevance and appropriateness of the artwork to the public place on which it will be installed.

All parties must ensure that Indigenous Cultural and Intellectual Property (ICIP) principles are upheld for any use or adaptation of Indigenous cultural heritage. First Nations peoples’ rights to their cultural heritage, traditional knowledge and traditional cultural expressions must be respected and protected. First Nations artists may include communally owned ICIP in their works. Contracts must confirm what has been agreed about how this ICIP will be exhibited and promoted.

For more information, see First Nations.  

It is good practice to engage a First Nations curator when commissions invite participation from First Nations artists or engage with subjects related to First Nations histories or themes.

Legal obligations in the areas of intellectual property and copyright (see Intellectual Property), workplace health and safety (see Workplace Health and Safety), accessibility (see Access Rights for d/Deaf and Disabled People) and insurance (see Insurance) apply in this area.

Engaging a Public Art Coordinator or Consultant 

If required, a commissioner may engage a public art coordinator, consultant or curator to steer or manage the scoping, briefing, EOI, concept development and delivery of a work. This is particularly common for projects commissioned through a ‘percent for art’ process. Public art consultants have a responsibility to ensure good practice and uphold the rights of artists as well as those of the commissioner. 

Responsibilities include:

• research and project scoping 

• advising on best practice, budgets, consultation

• development of guiding principles and curatorial framework

• development and delivery of EOI and artist selection processes

• consulting and planning for access provisions for d/Deaf and Disabled artists

• artist briefing and contracting 

• mediating between the commissioner, contractors, artist and other relevant stakeholders

• monitoring progress of design development, fabrication and installation 

• risk management and reporting

Briefing

An artist brief outlines the scope and objectives of the commission. It includes information about the commissioner, site, project background, timelines, budget and any site considerations and limitations.

The commissioner and public art consultant will need to consult with relevant authorities regarding development approvals.

Commissioning processes, timelines and budgets should recognise administrative and consultation work associated with the project for both artist and commissioner. A clear scope and deadlines for deliverables assist all parties to maintain accountability. 

Temporary public art projects typically run to shorter schedules (six weeks to six months). Commissioners should consider building buffer time into all project stages, which artists can also request to utilise.

Applications and Shortlisting

Expressions of Interest (EOIs) require artists to submit a CV, images of previous recent work and a short written response to the artist brief (it is good practice to allow accessible submission formats where required). 

Artists should not be expected to submit visual concepts responding to the brief as part of the EOI, or any part of the selection process, without being paid.

A selection panel made up of community and Traditional Custodian representatives, cultural experts and commissioner representatives may be appointed. Their key responsibility is selecting the artist and/or artwork for a commission. The selection panel creates a shortlist of artists to move on to the concept design stage. Their key responsibility is selecting the artist and/or artwork for a commission.

Commissioning bodies should make selection processes transparent through providing detailed information on selection criteria in the artist brief. The process should be equitable and the decision-making process should be made clear. It is good practice to disclose who is on the selection panels, see Equitable Application Processes.

Concept Design

Shortlisted artists should be contracted to develop a concept design for a fee.

The artist should retain copyright in concept designs, which may be used for another project if their concept is not selected. A concept should be chosen by the commissioner based on transparent criteria and equity considerations, see Equitable Application Processes. The commissioner may also consider inputs from public art consultants or the selection panel. 

Concept design requirements can include: 

• written response to the artwork brief (or alternative communication method if required)

• sketches, drawings, mock-up, models or references 

• information on materiality, scale, orientation 

• methodology for consultation, fabrication, installation 

• indicative budgets and timeline and work schedule 

• insurances 

It is good practice to provide feedback to unsuccessful applicants.

Project Development 

Once the selected artist has been contracted, they develop the concept design further. The design development phase also considers materiality, fabricators, engineering, budget, timeline and risk management.

Fabrication and Installation  

Artists and/or public art consultants have the responsibility to manage subcontractors and installers. 

All parties should take responsibility for raising possible or actual impacts to project timelines as early as possible. Changes should be agreed upon collaboratively, rather than imposed by either party. Commissioners may not always be aware of the creative complexities of a project, as such no changes to timelines can be assumed to be ‘minor’. Major delays need to be discussed and approved as a written variation to the contract. 

Similarly to an employee working flexibly or part-time, artists are often engaged across multiple activities and projects. Frequently artists also engage in their practice outside of standard business hours. Organisations and artists should maintain a reciprocity of understanding regarding availability. Full-time engagement should not be expected unless it is a requirement of the opportunity, and is provided for by appropriate fees. Seeking clarity in early stages of the project is essential.

The artist should maintain control of the fabrication process at all stages and manage any subcontractors. Handover is the transition of responsibility for the artwork to the final owner. The artist must be attributed through appropriate signage as agreed to in the contract. Signage may also include explanations of the art or accompanying story. Wording of any signage should be confirmed with the artist and include any community attribution requested by the artist.

Maintenance

Public artworks must be maintained for their lifespan by the final owner. The artist should provide the owner with a maintenance plan or manual upon completion and installation. Public Art Reston provides a Public Art Maintenance Plan template.  

The artist should be contacted if there is any damage, vandalism or deterioration of their artwork and given an opportunity to quote to repair the work as the first option. The artwork should not be altered without discussion with the artists.

Legally binding moral rights apply in this area, see Intellectual Property.

Decommissioning and Acquisitions

An artwork may need to be decommissioned for various reasons. The artist must be contacted when a work is to be changed, relocated, demolished or destroyed. 

Under the Copyright Act 1968 (Cth), commissioners must provide the artist with three weeks notice before decommissioning a work to allow them time to document their work. 

For more information, see the NSW Government Public Art Toolkit resource.

The commissioner should provide a contract outlining terms and conditions. Artists are entitled to negotiate the terms of their contract. Contract templates should be adapted to reflect the specifics of the project. Public art consultants may also arrange this on behalf of the artist and/or commissioner. 

The practical longevity of a public artwork should be reasonably understood by the artist and commissioner and reflected in the contract.

Responsibility for the following areas should be negotiated and outlined in the contract: 

• roles and responsibilities of each party

• a clear brief

• timeline, clearly outlining the responsibilities of each party, including administrative deadlines

• fees and budget

• responsibility for compliance with WHS principles

• responsibility for, definition and scope of community consultation

• risk management

• public liability

• certification requirements

• insurance responsibilities, see Insurance

• development and planning approvals

• compliance with organisational policies (such as local government art policies). 

• installation and de-installation processes

• maintenance manual or guide

• review process in which commissioner can accept or reject the work (on reasonable grounds) or request changes to the artwork to ensure compliance with the artwork brief

• credit and attribution arrangements, including responsibility for the cost of attribution, such as plaques

• confirmation of continued copyright ownership by the artist and confirmation of any agreements about joint copyright ownership

• agreement in relation to moral rights

• agreement in relation to ICIP (when the contract is with a First Nations artist, or includes ICIP)

• agreement in relation to any licences to use the copyright, including for promotional purposes

• artwork promotion arrangements, including via social media

• accessibility provisions for artists, installers and audiences

• variation processes

• process for conflict resolution, see Grievance and Dispute Resolution

The commissioner is the person or body that commissions an artwork. Often public art consultants are engaged to manage the responsibilities of the commissioner on their behalf. 

Responsibilities include: 

• preparing a realistic budget

• preparing realistic timelines, including creating buffer time that is available to the artist for contingencies. 

• consulting with Traditional Custodians and stakeholders

• plan for and provide access for artists and audiences

• consulting with relevant authorities regarding development approvals

• preparing a clear artist brief and management structure

• developing and executing the contract

• managing the expression of interest (EOI) and concept design processes

• monitoring the project’s progress and ensuring safety and legal obligations are met 

• maintaining the material and artistic integrity of an artwork in line with moral rights obligations

• providing the artist with three weeks notice before a work is to be changed, relocated, demolished or destroyed in line with the requirements of the Copyright Act 1968 (Cth)

The artist’s responsibilities include: 

• designing work in line with the artist brief

• establishing the reasonable lifespan of an artwork

• communicating regularly with the commissioner and collaborators

• arranging reasonable budgets and timelines

• considering and communicating accessibility of the work

• negotiating arrangements with their representing gallery or agent

• seeking advice where needed in relation to finances, insurance, intellectual property, legislative and regulatory requirements, materiality, fabrication and engineering

• maintaining appropriate insurances, see Insurance

• managing any subcontractors and ensuring they hold the appropriate insurances 

• identifying and managing risks and preparing a risk-management plan (subcontractors should be included in risk management planning)

• ensuring the structural certification of the work

Artists are responsible for understanding the legal implications of contracts. Artists should conduct their own due diligence with respect to negotiations with all parties in the conception and delivery of a public artwork. Artists should not undertake work on a project until the terms of the contract are agreed in writing and signed by both parties.

The contract should outline insurance responsibilities of all parties. The artist is responsible for identifying and managing risks. A risk management plan should be prepared for the development, delivery and installation, if required. 

Once ownership of the artwork transfers to the commissioner, the commissioner is responsible for all insurances. Artists may be required to maintain liability insurance for a defined period following the transfer of ownership. The artist is responsible for the structural certification of the work at practical completion.

For more information, see Insurance.

It is the responsibility of the commissioner to ensure the process, website, communications and spaces are accessible. Generally, it is the responsibility of the artist to consider, communicate, plan and, where possible, ensure their work is accessible. 

Accessibility provisions should be allocated from the project budget and should not come from the artist’s fee.

For more information, see Access Rights for d/Deaf and Disabled People.

Opportunities to strengthen diversity and inclusion for artists and audiences should be considered throughout the project, including in the expression of interest, selection and implementation processes. Selection criteria and processes should be made transparent and accessible to allow for diversity and inclusion.

For more information, see Racial Equity and Representation and Equitable Application Processes.

Artists must be paid properly and promptly for the work they undertake at all stages of the project. Art cannot always be produced in predetermined ways and unique processes are at the heart of best-practice artwork. The commissioner should ensure that artists are paid fairly for the completed artwork but also for their creative and administrative time, as well as intellectual property.

Sometimes fees are broken down into stages. For example, the commission fee reimburses the artist for their work. And then a licence fee is paid to the artist for the use of their work. These milestones payments ensure that even if the commissioner rejects the finished work, the artist is reimbursed for their work, but the commissioner is not paying for a licence they will not use.

Budget 

A project budget should be flexible, except for the artist fee. The budget should include a contingency of between 5% to 10%. The cost of accessibility provisions should be allocated in the project budget and should not come out of the artist’s fee.

Artist Fees 

Concept Design Fee

The concept design fee depends on the scope of the project and the requirements of the commissioner at this stage. Generally, factors to scope or consider in the concept design include the type, scale, location, materiality, fabrication requirements, public liability provisions and community engagement requirements. Fees may vary from $500 to $10,000 depending on the type, scope and scale of the commission, and requirements of the specific concept design process. 

Commission or Artist Fee

Commission or artist fees vary between 20% and 40% of the project’s overall budget, depending on the scope and scale of the artwork and the timeframes, technical nature, fabrication, materials, and level of assistance provided. Payment to artists should be scheduled to key milestones, with a significant proportion of funds provided at the beginning of the project to allow for cash flow. If appropriate, artists and their representing galleries should negotiate a commission rate.

Variations

Where there is a change to the budget, a variation should be submitted and signed by both parties. For example, if a commissioner requests a change to the work that has an additional cost to design, fabricate and install, this must be documented in a variation to the contract. This ensures clarity and confirms that the new expenses are in addition to the original, agreed budget. The variation is added as an appendix to the original contract.

Depending on the scale and budget of the project, either the artist or commissioner can be responsible for making payments to subcontractors. 

Public Art Coordinator or Consultant Fees 

If a public art coordinator or consultant is engaged, their fee can be part of the total artwork budget, particularly if a ‘percent for art’ policy driven project. The fee can also sit outside and be independent of the artwork. Public art coordinators and consultants should be paid between 10% to 15% of the total artwork budget depending on process, level of complexity, time requirements, number of artists and artworks. 

For more information, see Payment Standards.     

Artists’ intellectual property and moral rights should be recognised and protected in all processes. Legislation protects artists’ copyright and moral rights. The artist should retain copyright of both the completed artwork and any preliminary visual material developed for the artwork commission. 

The artist should also be properly acknowledged with appropriate signage accompanying the artwork, and in any use of the work, including promotional, archival and advertising materials online and in print.

Reciprocal rights, and associated processes, to promote public art commissions through social media channels should be clearly established in the agreement, such as tagging an artist in promotional posts. If an agreement stipulates that an artist must seek prior approval for their own social media posts related to the commission, clear processes and steps for this process should be included.

The artist should maintain control of the fabrication processes and be directly involved in all stages of procurement and production. If a commissioner separates the artist from the production of the artwork, this may constitute a breach of copyright.  

The commissioner can be granted a licence to use images of the work for specific purposes. The duration of this licence should be negotiated and defined in the contract. Any commercial use of the work, or reproductions of it, should be negotiated, with a licensing fee payable. The rights of the artist to use imagery of their work should be affirmed.

Under moral rights protections, the commissioner must attribute the artist as the creator of the work. The artist and commissioner must comply with the principles of ICIP, particularly in relation to the re-telling of any accompanying story to the art, and in community attribution of communally owned knowledge.

For more information, see Intellectual Property and First Nations.