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Old 10-08-2019, 03:22 PM
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copyright for hired consultants


I'm an employee of a company and as part of my duties I produce written documents including papers, manuals, grant applications, application notes. I assume the copyright is retained by my employer and not me. Is that normally correct?

What about hired consultants hired for specific projects? If my company hires a consultant to write a specific document, who retains the copyright normally? I expect a contract can be signed that says the copyright goes to the consultant, but I would expect that "normally" the company who has done the hiring retains the copyright.

Is it typical and normal that the copyright goes to the hiring company and not the consultant?
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Old 10-08-2019, 04:16 PM
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IANAL, but as I recall, there's a category "works for hire" where the one doing the hiring owns the copyright. Otherwise, Disney or any other animation studio (not to mention any movie studio using scripts) would not be able to operate. What criteria define "for hire" (other than hiring) I don't know.
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Old 10-08-2019, 04:29 PM
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Originally Posted by Sigene View Post
....copyright is retained by my employer and not me. Is that normally correct?
Yes it is normal to have this agreement in the employment contract.

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If my company hires a consultant to write a specific document, who retains the copyright normally?
Normally the company does. This is usually covered by a boilerplate agreement on the purchase order or work order.

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Is it typical and normal that the copyright goes to the hiring company and not the consultant?
Not usual but it can certainly happen. A mutual NDA or some such agreement to address cases like these.
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Old 10-08-2019, 05:27 PM
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Due to the nature of the consulting that I do I have a specific clause in my client contracts that I retain all copyrights for the work I create and that I am granting a limited liscense to my clients to use the work. The standard clause my lawyers normally use in that part of the contract give the copyright to the hiring party and I had to pay to get them to restructure it.

I would assume that the normal operation is that the person paying to have the work created owns it no matter if they are hiring a consultant or using an employee.
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Old 10-08-2019, 06:51 PM
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Originally Posted by Oredigger77 View Post
Due to the nature of the consulting that I do I have a specific clause in my client contracts that I retain all copyrights for the work I create and that I am granting a limited liscense to my clients to use the work. The standard clause my lawyers normally use in that part of the contract give the copyright to the hiring party and I had to pay to get them to restructure it.

I would assume that the normal operation is that the person paying to have the work created owns it no matter if they are hiring a consultant or using an employee.
Having been on both sides of the consultant-employer relationship, the norm seems to be that standard contracts / letters of engagement that hire you to write Report X requires you to sign away all rights to the end product. If you want to retain copyright and grant them a license then its up to you to take the initiative and get their agreement for the license.

I found that one-off clients who simply want Report X so they can do Thing Y are happy to do this, but government departments, large consultancy firms and others who engage lots of consultants are very reluctant.

Partly, its the pain of having to vary the standard contract, which might mean progressing a contract variation request up a long and uninterested food chain. Partly, its their comfort in knowing its their product and they won't have to get legal verification if one day they decide to use Report X as a template on Project Z because they really liked the way that the tables in Appendix 3 were set out, or want to re-use a chunk of text, or if Concerned Citizen requests a copy. These sorts of things become tedious and finicky to check if they were allowed by the original license, but the license creates real penalties if that checking is not done.

That said, they usually fully understand why you'd want to insist on retaining copyright and won't be dicks about it, but the value of your product to them has to outweigh the annoyance factor.
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Old 10-08-2019, 07:00 PM
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Generally speaking, an employee’s work belongs to es employer. An independent contractor retains the copyright interest in es work absent a written agreement otherwise.
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Old 10-08-2019, 07:33 PM
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And as always, when in doubt, get it in writing and signed. Even if there is a standard principle of law that covers this, putting it explicitly in the contract makes it unambiguous and saves headaches in the long run.
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Old 10-08-2019, 08:17 PM
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My contract with my employer gives them the rights to all intellectual property I develop while Iím employed by them. The only exception is works totally unrelated to my job functions. Basically they get anything I invent thatís looks remotely like anything I develop at work.

But it goes further. My employer mostly sells to the government. And the government typically demands unrestricted rights to anything we deliver to them. No proprietary works, no copyrights, no patents, etc. They donít want any hassles so they donít get any.

So while my employer gets my IP in theory, in practice it all goes to the public domain.
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Old 10-08-2019, 08:20 PM
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Is it typical and normal that the copyright goes to the hiring company and not the consultant?
It's certainly quite common. I always retain copyright to all my creative works (I'm a photographer), but that typically has to be hammered out in the contract. Many/most companies are going to try to get you to sign a work-for-hire type of agreement where they retain copyright. I have not done a WFH in over 20 years. I try to find out what kind of usage rights they need, and I negotiate those for a fee, but I do not hand over my copyright.
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Old 10-08-2019, 09:58 PM
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The rules governing works for hire have become more strict over the past several years. Now, even if all parties agree that the product is work for hire, it may not legally be one. Even the Circuits are split over the issue. See Kauffmann v. Rochester for one example.

Last edited by GreysonCarlisle; 10-08-2019 at 09:59 PM.
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Old 10-09-2019, 08:52 AM
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[....]the government typically demands unrestricted rights to anything we deliver to them. No proprietary works, no copyrights, no patents, etc. They donít want any hassles so they donít get any.

So while my employer gets my IP in theory, in practice it all goes to the public domain.
My company has at least one contract with the federal government that allows us to copyright/patent software we deliver, and allows us to use it elsewhere, but allows the government unlimited use without royalties. This is the government's contract; we didn't write it. IANAL but it may not be correct in your company's case that it all goes into the public domain. I think your company needs a better lawyer.
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Old 10-09-2019, 09:21 AM
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My company has at least one contract with the federal government that allows us to copyright/patent software we deliver, and allows us to use it elsewhere, but allows the government unlimited use without royalties. This is the government's contract; we didn't write it. IANAL but it may not be correct in your company's case that it all goes into the public domain. I think your company needs a better lawyer.
It's more that we have a poor negotiating position--we are extremely limited in who we can sell to. Our customers said "these are the new rules, play by them or go home". It's not completely negative though, our competitors have the same clauses. And it means we can use the nuts and bolts of their work product just as well as they can use ours.
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Old 10-09-2019, 09:55 AM
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The Copyright Office's flyer on works made for hire -- https://www.copyright.gov/circs/circ09.pdf
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Old 10-09-2019, 11:26 AM
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When I was hiring free-lancers, we had two standard agreements. For writers, we claimed all ownership of interviews, notes, preliminary drafts, etc., as well as copyright. For photographers, we agreed that they retained ownership of the negatives, and specifically granted them the right to reproduce the materials for their own collections, and for their own marketing materials (But not for sale for profit.)

I never had to negotiate a contract for original music, thank goodness.
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Old 10-09-2019, 12:08 PM
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Originally Posted by Acsenray View Post
The Copyright Office's flyer on works made for hire -- https://www.copyright.gov/circs/circ09.pdf
The specific bit that would apply to the OP is:
Quote:
Definition* in Law
Section 101 of the Copyright Act (title 17 of the U.S. Code) defines a ďwork made for hireĒ in two parts:
a a work prepared by an employee within the scope of his or her employment
or
b a work specially ordered or commissioned for use ...
Since the OP specified that the duties include writing, etc. then this covers it.

But ... there are always gray areas. As a college professor, my writings were mine. So I could produce class notes, research papers, text books and I had control over them. (If one of those was produced using grant money there might be restrictions. E.g., an NSF supported research paper would usually need some sort of public availability.) For a long while same with patentable ideas. Then the schools started formalizing things so that they'd get in on the patent, if they wanted to.

* Complete aside: I noticed an interesting artifact in c&p this. I got "Defintion" instead. There's clearly an "i" in the text. Well, an "fi" ligature. That getting dropped to an "f" is surprising at first.
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Old 10-09-2019, 12:22 PM
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ftg raises a point I've thought about. As a teacher, suppose I develop a curriculum to use with my students. I'm paid to teach students, not to develop curriculum for the district so who owns the copyright?
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Old 10-09-2019, 12:38 PM
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Originally Posted by ftg View Post
The specific bit that would apply to the OP is:
I think it does a disservice to edit out the rest of (b), which is, in complete:

Quote:
a work specially ordered or commissioned for use (1) as a contribution to a collective work, (2) as a part of a motion picture or other audiovisual work, (3) as a translation, (4) as a supplementary work, (5) as a compilation, (6) as an instructional text, (7) as a test, (8) as answer material for a test, or (9) as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.
Because it makes very clear that not every work specially ordered or commissioned for use is a work made for hire. Only some things are.

Last edited by Acsenray; 10-09-2019 at 12:39 PM.
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Old 10-09-2019, 12:47 PM
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ftg raises a point I've thought about. As a teacher, suppose I develop a curriculum to use with my students. I'm paid to teach students, not to develop curriculum for the district so who owns the copyright?
I guess then it's up to a judge to decide whether curriculum development was within the scope of your work. This is how lawyers can afford to join country clubs. Not a lawyer, but I'm going to guess - did they ask you to create a curriculum (as opposed to simple lesson plans)? Or did you look at the existing curriculum and say to yourself "this is crap. I will make my own." How much did your management direct you? etc. etc.
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Old 10-09-2019, 01:12 PM
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ftg raises a point I've thought about. As a teacher, suppose I develop a curriculum to use with my students. I'm paid to teach students, not to develop curriculum for the district so who owns the copyright?
Were I to guess, I would say that a court would likely find that developing a curriculum to use in your classes would be within the scope of your duties as a teacher. However, I would further surmise that authoring a book that proposes, describes, and expounds upon a curriculum would not be within the scope of your duties as a teacher, especially if you did the writing on your own time and using your own resources.
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Old 10-09-2019, 04:24 PM
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One of the problems with who owns the material produced by a prof for teaching a class is the fact that people move around.

So a prof starts at school A. Takes some existing material. Adds some stuff to it. Moves to school B. Continues to use and add to it. Moves to school C.

If school B suddenly tells the prof they can't use the material since B owns it, and sends a threatening letter to school C to make sure they enforce it (because that's what lawyers do- send threatening letters to everyone).

Now it's a mess. Maybe the prof asks A for help to prove that it is mostly stuff from that time period. And A decides they need to send out letters to everyone. And on and on.

Schools suing other schools is to be avoided.

So they don't really want to kick this hornet's nest.

OTOH, they really want a copy of all course notes, assignments, exams, etc. for the next person who will teach it. It's a quid pro quo. We don't exclusively claim it and you won't either.

Similarly, patentable ideas might have been developed over the years at more than one school. So they only got really serious about latching onto those once the stakes got high enough to endure the hornets. Computer Science was one of the key fields in making them realize the money involved. We and the Biologists and such say "You're welcome."

The last school I worked at rolled out a required form regarding patents. Even for existing faculty. "Don't sign it? Well, we can't fire tenured people but then we can not pay you, kick you out of your office and, worst of all, take your parking space."

It was horrible. You submitted your idea to their IP lawyers. They had a year to decide what to do: file on your behalf and take half or let you have it. Um, this was bad before but now it's a first to file system. You do not wait one day to decide to file or not.

(And I mistyped "Defintion" instead of "Defnition"!)
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Old 10-09-2019, 05:06 PM
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And as always, when in doubt, get it in writing and signed. Even if there is a standard principle of law that covers this, putting it explicitly in the contract makes it unambiguous and saves headaches in the long run.
Our city learned exactly that in relation to public art. A vehicle hit a metal sculpture that had been installed in a street median. The artist claimed that the city couldn't make repairs and re-install it, that he had to be hired at hefty rates to "preserve the integrity" of the piece.

I'm not sure how things were decided, but all of the engineers and project managers in the city got legal language to be added to any future contract that included providing and/or installing public art.
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Old 10-10-2019, 04:20 AM
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I'm not officially a "creative" but part of my job includes writing documents and designing stuff (from document formats to small programs). My contracts always indicate that intellectual ownership belongs to the end client: not to me, not to my agent, not to any consulting firms involved. Whether I'm officially allowed to retain copies of such documents or not is generally understood and sometimes spelled out to follow internal policies: any content the client considers exclusive when produced by an internal worker is exclusive when produced by me, same for confidential, same for "feel free to diseminate and reuse, giving proper credit".

Note that any design I make, I can always re-create; being allowed to keep copies can make the drudgy parts of the job easier when it involves looking up a bunch of field names and technical values, but when it comes to training manuals I always start from scratch and when it's processes, what, you wanna keep my brain? Sorry, not legal!

Last edited by Nava; 10-10-2019 at 04:25 AM.
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Old 10-10-2019, 11:06 AM
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I know for the engineers and other science disciplines where I worked, they had the "whatever you come up with is ours" rule, even if you did things in your spare time, if there was even the remotest connection to what you worked on. (After all if you are hired as a chemical engineer, or mechanical engineer, odds are anything patentable from you will be in your field of expertise) One of the lowly lab techs invented something and got moderately rich off it, and since they did not extend the courtesy of such agreement to his employment category, and it was not directly related to his work (he was a tinkerer at home) he kept it. Funny thing, this was back in the days of COBOL, they did not feel this condition needed to be applied to the IT department.
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Old 10-10-2019, 03:06 PM
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Our city learned exactly that in relation to public art. A vehicle hit a metal sculpture that had been installed in a street median. The artist claimed that the city couldn't make repairs and re-install it, that he had to be hired at hefty rates to "preserve the integrity" of the piece.
Knowing the appearance of most street art I'd attempted to remove it saying, "Sorry your giant paperclip got banged up. You have thirty days to get it out of our storage yard or storage fees will apply."
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Old 10-10-2019, 04:12 PM
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Knowing the appearance of most street art I'd attempted to remove it saying, "Sorry your giant paperclip got banged up. You have thirty days to get it out of our storage yard or storage fees will apply."
That might have cost them a lot of money. The Visual Artists Rights Act of 1990 gives the creator of certain works (and public sculptures are very likely to qualify) the right of integrity -- the right to prevent distortion, modification, or mutilation, or (for works of recognized stature) intentional or negligent destruction.
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Old 10-10-2019, 04:25 PM
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That might have cost them a lot of money. The Visual Artists Rights Act of 1990 gives the creator of certain works (and public sculptures are very likely to qualify) the right of integrity -- the right to prevent distortion, modification, or mutilation, or (for works of recognized stature) intentional or negligent destruction.
But is the recipient/hosting city obliged to maintain the artwork? Presumably deterioration, vandalism, accidents etc. happen and the city owes no obligation to actively maintain a work of art. They do so out of concern for the appearance of their city, and if an artist vetoes their proposed maintenance then the onus falls to the artist to persuade the city to pay for his choice of maintenance.

The act I presume does not prevent the city from deciding to remove a work of art, to stop displaying it or change venue.

(Recall the big to-do about the bull, and then about the little girl and the bull, down by Wall St. )

Last edited by md2000; 10-10-2019 at 04:26 PM.
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Old 10-10-2019, 04:38 PM
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But is the recipient/hosting city obliged to maintain the artwork? Presumably deterioration, vandalism, accidents etc. happen and the city owes no obligation to actively maintain a work of art.
Natural deterioration isn't actionable. However, failure to take reasonable steps to protect a work might trigger the intentional or negligent destruction provision for notable works. Preservation is allowed, unless it is done with gross negligence.

Quote:
The act I presume does not prevent the city from deciding to remove a work of art, to stop displaying it or change venue.
They have to give the artist adequate notice and an opportunity to remove it emself.
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Old 10-11-2019, 08:49 AM
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^Exactly^ Give it back to the artist and buy a new one, maybe with some bollards around it this time.
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Old 10-12-2019, 06:50 PM
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I don't think bollards would improve things. They'd be a visual distraction and could be a liability.


Any artist who is passionately attached to their metal sculpture shouldn't agree to have it installed in a street median. Although that makes it slightly less likely to be hit by graffiti.
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Old 10-12-2019, 06:58 PM
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I don't think bollards would improve things. They'd be a visual distraction and could be a liability.


Any artist who is passionately attached to their metal sculpture shouldn't agree to have it installed in a street median. Although that makes it slightly less likely to be hit by graffiti.
This is a silly standard. And it reflects a level of disregard and disrespect for creators.

You might as well say that if a municipality or a corporation doesn’t value the integrity of artists’ work, they shouldn’t seek to display art.

Municipalities and corporations often want quality public art for the prestige and other factors. Artists often like it for the same reasons. In many cases that one piece of public art might be that artist’s most important work.

If no one was getting anything out of these arrangements then they wouldn’t do them in the first place.

Copyright and moral rights laws like VARA attempt to achieve a balance, especially given that the vast majority of artists don’t have the means to (1) forego opportunities or (2) move and store giant things at the top of a hat. Artists’ Rights fo a small way towards giving the artist some leverage.

And that’s also one of the reasons that contract law exists—people are giving up something in return for getting something.
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Last edited by Acsenray; 10-12-2019 at 07:00 PM.
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Old 10-13-2019, 01:11 PM
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I'm not really sure which "standard" you're referring to. To acknowledging that things in street medians tend to eventually be hit by cars?
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Old 10-13-2019, 06:43 PM
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The standard being the one regarding how the liability for that risk should be allocated. It shouldn’t be “artists who are serious should just not allow their works to be used.” Their works should be used, and the liability should be allocated in a way that the burden doesn’t fall entirely on the artist. Remember, the entity putting the work there could just refuse to use artistic works. So there should be shared liability in the case of damage.
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Old 10-14-2019, 01:30 PM
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The liability associated with bollards is that they stop a car more abruptly than a tree or art work would and therefore are more likely to cause injury. The artist has no part of that liability. Whichever entity is in charge of the street, not the artist, would be deciding whether to install bollards, so the entity would have the full liability.
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Old 10-14-2019, 01:58 PM
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The liability associated with bollards is that they stop a car more abruptly than a tree or art work would and therefore are more likely to cause injury. The artist has no part of that liability. Whichever entity is in charge of the street, not the artist, would be deciding whether to install bollards, so the entity would have the full liability.
And given that they might choose to reduce their liability in that respect by foregoing bollards, itís fair that the risk to the sculpture increased by the absence of bollards be shared, with the municipality bearing a larger burden than the artist. The various burdens of liability should slide up and down according to the bollard factor and others, including the comparative ability of a municipal corporation versus an individual artist to bear such burdens.

Itís fair that these burdens be comparatively allocated. As I said, cities donít have to install public art. If they think that public art is garnering the city some benefit, itís fair to make them bear more of the burden of the risks of damage.

Allocating burdens risk isnít about ensuring that the risk is zero. Itís about sharing the liability fairly.

And one of those ways is by contract. If an artist has a contract that restrict how repairs will be made then thatís the way the cookie crumbles.
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Old 10-14-2019, 03:44 PM
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You say "itís fair that the risk to the sculpture increased by the absence of bollards be shared". I have no idea what that means.

The risk to the sculpture is that it will be hit by the car.

As a result of the collision, the artist is on the hook for nothing. The artist will not be sued whether there are bollards there or not.

As a result of damage to the piece of public art due to the collision, the artist is on the hook for nothing. The city (or other agency) will pay for any repairs. Or the city (ooa) will pay to remove the remains.

The only thing under discussion is whether the city is required to pay the artist to make the repairs, or whether they can use their own or a hired crew. That's not a risk. That's either part of the contract or it's not. And if the most likely damage is that the attachment pole is bent and needs to be replaced and reset into a new foundation, then the city's going to want the option to use their own crew.

If the city wants a replacement, whether they have to purchase it from the artist might also be part of the contract. Even if the city completely bought the design, the original artist probably has an advantage in negotiating to provide the replacement.

I understand that improper repairs can be thought to impinge on the artist's creative integrity. But this is still a metal object that's been installed in a street median. The city does not want a bad repair (can you say public ridicule?) but they also don't want to pay through the nose for easy repairs.
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Old 10-14-2019, 10:11 PM
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Plus, what happens when the artist dies? Is he supposed to leave behind a company whose purpose is to keep his sculptures up to snuff forever and ever amen? Will they also handle periodic cleaning or is that left to the cities?
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