Good News for Artists Sometimes Means No Bad News

These days in the public art sphere, good news for artists often means that something terrible didn't happen. For instance, a 32-foot-tall blue cast-fiberglass statue of a rearing horse by Luis Jimenez, which had been installed posthumously in 2008 at the Denver International Airport, is going to stay put, despite some early criticism of the work and recent reports that the Denver Commission on Cultural Affairs and City Art was considering removing it.

Here is another example: A two-story installation in the rotunda at New York's John F. Kennedy International Airport's Terminal One, titled "Star Sifter," by sculptor Alice Aycock, which the terminal's managing agency commissioned in 1998 but sought to remove two years ago in order to make room for more fast food stands, has been relocated to the terminal's entrance. "I'm very pleased with the relocation," Aycock said. "I think it looks very dynamic."

She is no less pleased for not having to pursue the lawsuit she filed in April 2012 against the terminal management company for breaking the terms of her commissioning agreement, which stated that "Star Sifter" would only be removed if "required or necessary," and violating her rights under the federal Visual Artists Rights Act not to have her work "distorted, mutilated or otherwise modified in a manner that will result in immediate and irreparable harm to the honor and reputation of Aycock," according to the complaint. Her lawyers, who were working pro bono, undoubtedly also were pleased with a quick resolution. (Aycock gave the law firm one of her sculptures by way of thank you.)

Even with a satisfying solution, there is something to be learned from this situation. Aycock's commissioning agreement with the terminal management agency stipulated that "in the event that a dispute arises between parties" and a "mutually acceptable solution" cannot be reached, either the artist or the agency may request arbitration. Arbitration -- or its less contentious counterpart, mediation - is a speedier process to resolve a disagreement, and less expensive, too. No less wise, the commissioning agreement specifically stipulated that "the parties shall choose a mutually agreeable arbitrator qualified to review design, construction and installation documents and site review" within 10 days and that an opinion would be rendered within 30 days. There was also the stipulation in the commissioning agreement that the arbitrator be "a curator of Contemporary art at the New York Museum of Modern Art, or other established museum in the city of New York." Aycock's attorney, Stephen Younger, said that conducting arbitration "under the auspices of the Museum of Modern Art provides a forum that is very friendly to the arts rather than to fast food."
The best-written contracts still may be broken, requiring the possibility of expensive legal action, but Younger stated that the commissioning agreement Aycock negotiated and signed was particularly good, because of the arbitration clause that stipulated people very familiar with fine art would be the arbitrators. "Alice did everything she should have done," he said.

At least in terms of asking for an arbitration clause and stipulating who the arbitrators would be. Beyond the question of arbitration, however, are less clear-cut issues of law that would have to be resolved in court, such as whether the management agency's interest in bringing in more food vendors can be considered "required or necessary" for the operation of the terminal -- Is there a need for more food choices or vendors to satisfy passengers? Does the terminal need to generate more revenue? -- and if removal of Aycock's sculpture is tantamount to its destruction.

Chicago arts lawyer Scott Hodes, who has negotiated numerous commissioning agreements on behalf of artists, stated that the contract Aycock signed did not include any mention of a possible removal of "Star Sifter." "Airports continually look for more ways to improve the areas where passengers are waiting with an eye toward creating more opportunities for generating income," he said. "Things change in 13 years, and artists and the lawyers working with them need to be thinking ahead." Perhaps, that is because it did not occur to the artist nor her lawyer at the time that there might ever come a time when the sculpture would be taken down. The complaint notes Aycock's "understanding" that the sculpture would not be moved "except in extreme circumstances, such as unforeseen, unresolvable safety concerns or irreparable damage to the sculpture brought about by an act of God." That understanding was based on "pre-contract discussions" between Aycock and the terminal management agency, Younger stated, which did not find its way into the commissioning agreement. Hodes stated that the commissioning agreement should have described the possibility of the sculpture's removal, with the artist given an opportunity to reacquire the piece. "Some other company might want to own it," he said. "It is very likely to have gained in value, just as her stature in the art world has grown over that time."

"'Required or necessary' sets a very high standard," Younger claimed, but Hodes disagreed, noting that "'required or necessary' means different different things to different people, and government authorities like airports generally give themselves a lot of wiggle room when they write an agreement."

A happy ending for the "Star Sifter" dispute? To Hodes, it seems more like a disaster narrowly avoided. "Artists and commissioning authorities have disputes and, if the artist can afford an attorney or find pro bono counsel, problems can be resolved or settled because the cost of litigation from the artist's standpoint dictates the necessity to settle," he said. "On the other hand, if the artist does not have access to a competent lawyer, the artist is compromised or gives up. In my opinion, 'happy endings' is an oxymoron."