An Interview with Heather Darcy Bhandari: The Artist’s Contract for Jersey City’s Mural Program

Jersey City’s “Monopoly Mural” on Newark Avenue serves as a lens into Jersey City’s mural program, a fusion of private art and public space.  The 33-square foot mural was the work of local artist Mr. Abillity.  Mr. Abillity began painting the mural in late May, completed it in June, but by mid-July, the mural was gone.

The backstory of the mural has been detailed in the Jersey Journal and on WNYC, but the angle we are exploring for the first time in this article is: the contract. Whenever an artist does a large commission, especially if such a project involves public money, he must sign a contract with the organization sponsoring it. As was the case with the Monopoly mural.

On July 1, 2016 CivicParent filed an Open Public Records Act (“OPRA”) request to get a copy of that contract. Under NJ OPRA law, the City is required to respond to the request within 7 days, yet it took the city nearly two weeks; on July 13^th the City Clerk’s office provided an initial response, stating “the City is conducting its search and an additional 2 weeks is needed for processing this request.” Finally, two weeks later, on July 27^th, we received the two page contract.

We shared the document with Heather Darcy Bhandari, co-author of the book Art/Work: Everything You Need To Know (and Do) As You Pursue Your Art Career, which explains standard business practices for professional artists. Below is an excerpt of an interview with her, in which she critiques the contract and points out its many lapses. In addition, she makes some suggestions of the kind of protections artists should ask for in such a document.  

By reviewing this contract, we can glean insight into the quality and professionalism of Jersey City’s mural program. This insight is important for local artists who may want to partner with the city. It is also important for taxpayers who rely on City officials to serve as professional stewards of Jersey City’s arts programming, paid for by public money. And lastly, open spaces matter – the look and feel of neighborhoods are important, and murals can help give communities a sense of pride and place, if executed correctly.

A copy of the Monopoly Mural contract can be found here.

CP/AW: What do you think of the contract overall?

HDB: It’s very strange. I would never have signed it. Much is missing and many clauses are worrisome for an artist.

CP/AW: Ideally, what sort of basics should be included in the contract? And are those things in this current contract?

HDB: Below are basic things to think about/include in a contract when entering into a commission agreement. Unfortunately, most of these things are either absent from the contract you sent me, or not stated clearly.

In the contract:

• who is entering into the contract
• what is being commissioned (in as much detail as possible. include approximate size, materials, title, location, etc)
• price of the work
• any additional costs (for example, separate prices for the mockups, travel, lodging, assistants, materials, etc)
• timeline for: completion of mockups, any revisions to mockups (if agreed upon, how many and when), approval of mockups, payment, completion of the work
• if the project is site-specific and not meant to be permanent, that should be noted with an end date (or approximate end date)
• what the commissioning body will provide (for example: documents, maps, dimensions, photos) necessary to plan and complete the work
• who is responsible for insurance, shipping, storage (if needed)
• whether modifications are allowed and under what circumstances
• a confirmation of VARA rights [“Visual Artists Rights Act of 1990” – see below] and who is allowed to restore a work if damaged
• a clarification on who has copyright once the commission is paid in full (Artists will always have copyright unless they sign the right away in a contract. If they are selling the work AND the copyright, the price of the work should increase.)
• whether the commissioning body is given the right (a license) to reproduce images of the work. If they are given the right, under what circumstances and with what credit given to the artist?
• a mention of who owns the mockups, drawings, etc, associated with the work
• what happens if the work cannot be completed
• a clause releasing the artist from claims related to the work (for example injuries and property damage). The commissioning body will probably want to release themselves against claims if the artist infringed someone else’s copyright.
• legal clauses pertaining to the signing of the agreement including potential breach, potential conflict, and which state’s law governs the agreement.
• signatures and date

CP/AW: Can you explain the section on copyright (article 6)? When an artist signs this, what exactly are they signing over to the city? Does this seem fair to you?

HDB: I don’t understand the clauses on copyright. Copyright is a bundle of rights given to an artist the moment a piece is completed. An artist does not have to register for copyright to get copyright protection (although there are certain additional benefits that go along with registration).

It is not clear how the city has any right to register for his copyright whether or not [the artist] registers himself.

Regardless of whether [the artist] has copyright (but, as I already stated, he does regardless of whether he filed), he also has VARA rights.

CP/AW: What about maintenance in the case of the mural being tagged or through normal wear and tear? 

HDB: VARA touches on this. Although, if I were the artist, I would ask for the maintenance schedule and protocol to be outlined specifically in the contract.

CP/AW: What about length of installation? Is the assumption that the mural is permanent or temporary, and what do you think about setting out reasonable expectations on length of installation?

HDB: Based on the contract, I have no clue whether this mural is meant to be permanent or temporary. That is one of the most basic elements in a commission agreement: timeline. Timeline should include installation AND de-installation timing or a mention that the work is semi-permanent or permanent.

CP/AW: What is the general understanding of a model or mockup? Once an artist has submitted a model and it has been accepted, are there usually provisions and changes that occur down the line, or is that unusual?

HDB: The general understanding is that once a model or mockup is approved, it is executed as close to the model/mockup as possible. Expectations are set on both sides once the mockup is approved.

However, sometimes an artists needs to change an element, or the commissioning body wants to make a change. That possibility should be spelled out in advance and the artist should limit the number of changes that can occur. For example, the artist could specify a date or a level of completion at which he/she will take input. However, I do not suggest that since the consequences can be maddening. Instead, I suggest the artist put something very simple into the contract that states the project will be executed in accordance with the mockup.

I have experienced situations where revisions to a commission are anticipated and necessary. In those cases, I’ve worked a timeline into the contract that specifies the number of revisions and at what point they can occur throughout the completion of the project. Additional compensation is required if the commissioning body wants to make more revisions than were originally agreed upon. And the artist has the right to walk away (fully compensated) if the revisions exceed the original agreement and stray too far from the approved mockup.

CP/AW: A fee is not noted (although the artist has remarked that he was paid for the project). Should that information be included?

HDB: Yes! I would have the total compensation listed, along with a payment schedule. When an artist is doing a commission, they should be paid a portion of the amount in advance and the remainder upon completion (perhaps the total amount is split into several payments at key moments throughout the completion of a large project). Ideally, there should also be a clause stating that the artist will be compensated in full after a pre-determined point, even if the commissioning body pulls the plug on the project.

CP/AW: Is there anything in particular you’d like to see added or changed in the contract?

HDB: Too many things to list! Overall, clarity is absent. Artist’s rights are missing. A mention of VARA is missing. And the indemnification clauses are not in the artist’s best interest.