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Welcome to AccelPro IP Law, where we provide expert interviews and coaching to accelerate your professional development. Today we’re featuring a conversation with Sarah Conley Odenkirk, Partner at Cowan, DeBaets and Yayoi Shionoiri, Executive Director of the Estate of Chris Burden and the Studio of Nancy Rubins.
In this interview, Shionoiri and Odenkirk discuss public art commissions and their overlap with intellectual property law, the public art development process and ways for artists and municipalities to effectively work together.
Listen on Apple Podcasts, Spotify and YouTube.
Interview References:
Yayoi Shionoiri’s profile.
Sarah Odenkirk’s Cowan, DeBaets, Abrahams & Sheppard LLP profile.
2:05 | Larry Kirkland.
2:41 | Public Art Network.
3:01 | Public Art Exchange (PAX).
TRANSCRIPT
I. ART LAW AND PUBLIC ART COMMISSIONS
Neal Ungerleider, Host: Could you both give a brief overview of your background and experience in art law in the context of public art commissions?
Sarah Conley Odenkirk: I had the tremendous fortune of working with an artist named Larry Kirkland when he was doing a project at the Portland airport. He designed a series of public art installations for the new Concourse C. Although he hired me and I attended all the meetings, represented him and read his contracts, it was he who taught me how to be a lawyer for a public artist.
That was really the beginning. From there, I got very involved in understanding the connection between artists and development projects. I also learned the importance of including artists in the civic dialogue that goes on around placemaking and community building and got very involved with an organization called the Public Art Network. That network was mostly public art administrators, so it took me a few years to be accepted as somebody who was truly dedicated to this field as a lawyer.
I may still be the only lawyer who's involved in that field in that way.
Although the Public Art Network no longer meets, there is a new group called the Public Art Exchange, or PAX, which is starting to pull together with the Public Art Administration field and other folks who work across the country supporting public art. Through that, I've managed to develop a lot of really extraordinary relationships with folks in pretty much every community around the country, and they're involved at all different levels.
Whether it be simply public art or public art within the private development community and whether these programs are voluntary or prescribed by ordinances, I get involved both in the policymaking side of things, as well as the contract negotiation side of things. Although I am not a litigator, when there are controversies and challenges around the impacts of the policies, ordinances, programs, and activities, I will often get calls from people asking me to help them figure out how to navigate those challenges.
Yayoi Shionoiri: Sarah has had an illustrious career working on all sides of the aisle, shall we say, when it comes to working and or representing stakeholders related to public art commissions.
For me, most of my work has been on the artist side, and specifically on supporting artists as they move through the life cycle of a public art commission project. Serving as a team member within the artist studio, this means not only doing the legal side of things, but also supporting the artist and the team from a project management perspective.
This includes the initial competition stage of when an artist first gets requested to submit a proposal, the proposal presentation, getting selected, and then working through the contracts at each phase including proposal, detailed design, fabrication and install, and then working through all of the legal and project management issues throughout all of those phases.
I think this topic within the world of art law should be discussed more often, and not just because Sarah and I get to work on these projects. From a policy perspective, I think it's important because the idea of what public art is in the United States, and how it comes into being is something that really continues to be significant in the general culture.
There have been ardent discussions about what public art means to a community, what it represents, and who feels like their voice is being represented.
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II. THE PUBLIC ART LIFECYCLE
NU: Because so much of our audience comes from different parts of the intellectual property and copyright law world, can you quickly take us through a high level view of what the lifecycle of public art is?
YS: I think about it from point A to point B. How does a project begin? How is an artist then selected?
Once the artist is selected, what process does the artist go through from creating the artwork, ideating the artwork and working with the commissioning body, to ensure that the work is installed?
I call the second phase the “detailed design phase". And that's more on the artist. After the artist is selected, the artist enters into a scoping part of the project where the artist either takes their idea or design, or actually a quite formulated proposal that was submitted.
They start thinking about how to actualize it within the site-specific location that the commissioning body has proposed for that piece. Workstreams could include anything from research and development for a new technique, procuring materials, or further refining sketches for the proposed work.
Some of the relevant legal issues at this stage are related to thinking through scenarios like what to do if the artist becomes unable to finish the work during the process. If that unfortunate situation occurs, is somebody, like the studio crew, able to finish the work? Would it still be considered the artist's work? Is there a way to build in what the artist’s obligations are for these types of contingencies at this detailed design phase, and the subsequent fabrication and install phase?
On my end, one of the things that I’m also thinking about is regulatory approvals–both legal and otherwise–that will be needed for the site. If a funder is a public entity, or if the commissioning body is a public entity, or a public-private entity, what does that approval process look like? If the site is near public transportation or city roads, are there transportation authorities that need to bless the method of installation?
Preparation during this phase requires a series of very detailed legal and legal-adjacent issues that need to be cleared even before the artist and the crew arrives to do install.
NU: What are the most important things that attorneys should tell their clients when working on public art projects to prevent misunderstandings and complications?
SO: Communication is key. It's really important that as people approach these projects, everybody is as much on the same page as they can possibly be both in terms of schedule, and expectations for what the outcome is going to be.
This goes for pretty much every aspect of the project, including intellectual property rights. When we're talking about what an artist comes to the table expecting, artists are going to want to get paid for their work. They're going to want to end up with a beautiful project that they can have on their website and on their resume.
They're going to want to have a good relationship with that commissioning party, so that they can then go on and do more projects.
Commissioning bodies are frequently looking to get the most bang for their buck. This can be problematic both from the standpoint of developing the project and looking at how intellectual property rights are held, post-installation.
I would actually mention that I would add a fourth phase to what you've already laid out, which is the maintenance and conservation phase that comes after installation.
I think that sometimes commissioning parties are coming to the table with this idea of getting the most they can for their money. Whether that be the structure itself of the artwork on its own, or whether we're talking about intellectual property rights that they feel are somehow valuable to them.
I’m going to argue that they're not as valuable as they think they are from the commissioning party side. I think that communication needs to be the focus for everybody so they're coming to the table with similar expectations.
It is also important because a lot of what happens in the commissioning process is very time sensitive. There are a lot of different schedules that need to be juggled, whether it's a construction schedule, the fabricator's ability to fit a project into their studio to get fabrication done, or hiring out the contractor to do the installation once the project is done. Everybody's got a schedule.
If anybody is running late or having any challenges, it is of the utmost importance that they share that with everybody else and not worry that they're going to look bad or unprofessional.
The best thing they can do is share that information and figure out how to manage the situation. Given any of those scheduling delays, anybody involved in construction or public works must be 100% prepared and ready to deal with that, because it happens in every single project.
YS: It behooves us to mention that there is a difference between copyright and property ownership. While intellectual property is a property right, there is a distinction between owning the artwork–which is a piece of property–and the copyright in (and to) the work.
One of the things that I think is also important to acknowledge, especially post-installation–as Sarah was pointing out, the maintenance part–is for the artwork owner to really understand what rights they have to the beautiful artwork that is now on their site.
This is versus the fact that, again, the artist has hopefully explicitly retained the copyright in and to the work.
Negotiating and agreeing upon a non-exclusive license upfront to ensure that the artist has given the rights uses that the commissioning body (or the artwork owner) wants–and needs–is really important. That includes being able to promote the artwork for example.
We also must think about the potential unfortunate future situations where the artwork owner might want to move or dismantle the artwork. What sorts of rights the artists have in those situations is important to hammer out early in advance before there are problems that arise.
SO: In addition to the distinction between the ownership of the work itself and the intellectual property rights, there is also a difference between owning copyright and owning something of value.
Oftentimes, people take a very black and white approach of “We're paying for it. We have to own the intellectual property.”
When we get to that stage in the conversation when someone feels very adamant about owning the intellectual property, my questions usually are:
“What is it that you actually want? What is it that you want out of this project? Do you want to be able to publish photographs of it with your city letterhead or your city logo on there?” That's something that we can get licensed for.
“Do you want to be able to create t-shirts and lunchboxes from the images of the artwork?” That's generally something that needs to be separately negotiated and compensated. That's a different function.
I've had a couple of different situations where municipalities want to commission a work for a particular purpose or a particular location and then also use it as a logo for their department or their city. That's not generally allowed, but having that conversation and understanding what it is that people want out of the process is important.
Sometimes the artists may be okay giving up the actual ownership of the copyright as long as they have no restrictions on the future production of derivative works–or anything that is based on that work that they've sold to the commissioning body.
Or maybe that they're allowed to use it for any sort of marketing purposes that they want, that they always get credit no matter where the work shows up, or where the images of the work show up. You can figure out ways to carve up those intellectual property rights that fall under copyright, and make sure that everybody gets what they want.
Then there’s the issue around what happens after the installation and in the event of removal, relocation, or destruction of the work. There's this idea that, “I paid for it. As the commissioning body or as the developer, I should own it and be able to do anything I want with it.” Yayoi, as you pointed out, that's not the case.
However, there needs to be a reasonably administrable process that's put in place so that people are free to do what they want to with their property.
Eventually, down the road, there's a recognition that public art, even if it's meant to endure for 25 years, will not necessarily be forever. There need to be ways of dealing with change that happens inevitably within development and within communities that requires a rethinking of public space. This may also include rethinking the placement of public art.
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III. ART LAW AS A CAREER PATH
NU: Shifting gears a little bit, what led you both to art law as a career path?
YS: That is a question that both Sarah and I get asked quite a lot.
I am an art historian first, with a focus on 1960s Japanese contemporary art. I went to law school many years ago, hoping that I could be an art lawyer.
However, at that time I didn't actually really know what those jobs were and that legal practice in the art world could support different stakeholders. For instance, in support of for-profit work like for artists, galleries, and auction houses; and for not-for-profit work, like for museums and cultural institutions.
I didn't know that it might be possible to work for a law firm that specifically works with art world ecosystem stakeholders, or that it might even be possible to eventually be in-house.
I would also say that if I knew how hard it would be to become and stay an art lawyer, I'm actually not sure I would have endeavored to do so. It's been a lot of ups and downs.
At the same time, I keep coming back to the fact that it gives me great joy to support artists and creatives doing what they do and trying to be as creative as possible in my lawyering, as well as finding innovative opportunities in the art law world.
SO: I think that in law school, one of the things that I found crushing was the realization that, for the most part, law schools are not built around using your own ideas and words and thinking creatively and out of the box.
That's generally not what's taught in law school. What's taught is regurgitating exactly what your professors tell you, in the way that they want to hear it back on their exams. That was very painful for me. I definitely questioned my path through law school. Although by the time I really started questioning it, I was so far in debt, I needed to just push through, get a job and pay my debts off.
Once I was practicing, I realized that while I did need to have a job not only to get experience, but to pay those debts. And to make sure that I was somewhat grounded in a traditional practice, I really had to pursue art law. I had to figure out a way to make that my focus, because that's really where my heart was.
My passion and my heart were in working with creative people and talking with people who tend to not be supported within our economies. Working with underrepresented populations both in the public art field as well as the more traditional art fields that you mentioned earlier, Yayoi.
I will say that the struggle didn't end with that decision, right? The decision to say, “Okay, I'm going to be an art lawyer” didn't really solve the problem that, ultimately, the legal profession is a bottom line profession.
It becomes very challenging to justify an art law practice that's based on passion and desire to work with creative individuals, when you're in a position where your billable hours and your bottom line are really important to the people you're working with.
On the one hand, you pointed out a number of different ways in which people who are interested in having art law careers can engage. Whether it's in the private sector, the public sector, law firms, in house, a number of different situations; that conflict is always going to be there.
Unfortunately, there isn't some generous fund out there that's simply going to pay me to give good advice to creative folks. That is an ongoing struggle that I didn't realize was going to continue throughout my career, when I started this.
I will say we shouldn't end on a negative note, right? It is still very rewarding. It allows for access and a window into the most incredible minds, and creativity, and projects. It also allows us to be involved in practicing creatively within the bounds of the law, of course. But, really being able to think in much broader creative perspectives than I think a lot of people who are boxed into their own areas of practice.
NU: Can you give an example of a time that you relied on peers inside and outside your organization to deal with tough situations?
YS: I think the field of art law has really developed, even in the last 10 years with more and more people joining our ranks. It's exciting to see the field continue to grow and mature, and see law school students interested in potentially becoming art lawyers.
Art law in the U.S., but also abroad, is a very small community. Because of this, and because the field is innovative and ever-changing, I find that it's generally super collaborative.
Because I serve as a solo legal practitioner, I feel honored that I get to be in this community, whether that's getting to pick someone's brain about their experience dealing with a specific issue or situation, or finding ways to cross collaborate.
With fellow colleagues like Sarah, for example, and other individuals like Megan Noh. So Sarah, Megan, and I often get to collaborate together on articles and presentations, even though we represent different portions of the art world ecosystem.
SO: At this point, I mostly rely on peers for difficult situations.
I realized a few years ago that I had shifted my place in the legal ecosystem from being somebody who sought out mentors to being somebody who was sought out as a mentor.
It was like, “Oh, this recognition of now it's my turn and my obligation, and my privilege and great honor, to be the person that is sought out for advice and support, and the knowledge of this particular niche area of practice.”
In the past, there was much more seeking mentorship as well as the wisdom of people who have experience in different areas of the law. Now, for sure, there's much more focus on the peer ecosystem, and working with other colleagues such as Yayoi.
As Yayoi mentioned, there is Megan Noh, and there are a number of other practitioners in the field who are exceptional and super supportive.
To that end, Yayoi and I have collaborated on a book that will be addressing a lot of issues within the public art world, or visual art in public spaces conversation. It's those kinds of collaborations and products that come out of that peer collaboration that are so exciting and so rewarding at this, at this point in one's career.
YS: I would add that it definitely feels weird to be at the stage in life to be providing wisdom and sharing knowledge.
In some ways, I feel like I have so much further to go, and so much more I can learn. But the writing process, vis-à-vis this textbook that you kindly mentioned, Sarah, “Visual Art in Public Places” and the concomitant legal issues surrounding the topic including copyright, is really actually helping me distill the many learnings I've gotten to work on over the years including challenges and creative solutions.
Once this book is done, we hope it serves as a resource for practitioners and interested members of the public.
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This AccelPro audio transcript has been edited and organized for clarity. This interview was recorded on February 13, 2024.
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