Art in public space
A sculpture stands on a square for forty years. Then the square is redeveloped and the sculpture no longer fits the plan. The municipality wants it gone, the maker reads about it in the paper, and the alderman starts getting questions.
That is the pattern. Almost every conflict over art in public space arises long after the unveiling, at the moment someone wants to do something with the site. And almost every one of them could have been settled in the commissioning agreement.
This page sets out the position under Dutch law.
The percentage scheme for visual art: where the budget comes from
The Dutch State has had a percentage scheme for visual art since 1951. On new build, renovation or conversion of government buildings, part of the construction budget goes to art, administered by the Atelier Rijksbouwmeester within the Central Government Real Estate Agency. The rate tapers as the project grows: two per cent on construction costs between one and seven million euros, and above that a lower percentage plus a fixed amount. Below a construction sum of one million the scheme does not apply.
Many municipalities run their own version, set out in a local regulation and often at a lower percentage. If you are working on an area development, find out which scheme applies before the budget is fixed. Adding art afterwards costs more than reserving room for it in advance.
What belongs in the commissioning agreement for an artwork
The agreement covers more than price and delivery. Four subjects are forgotten most often, and they are exactly the four that come up later.
Maintenance. Who maintains the work, how often, and to what protocol? Record whether the artist is consulted on restoration, and who bears the cost.
Relocation. May the work be moved? Much of it is made for one location and loses its meaning elsewhere. Agree whether relocation requires consultation, and what happens on a redevelopment.
Removal. What happens at the end of the life of the work or of the site? An obligation to offer it back to the maker, a duty to document, or a period in which the artist may collect the work.
Use of images. May the commissioning party use photographs of the work in campaigns, on the website and in publications? Name the channels and the duration.
Owning the artwork is not the same as holding the copyright
On delivery the commissioning party owns the object. Copyright stays with the artist unless it has been assigned in writing. Paying for a commission transfers no rights, however large the sum.
That distinction has practical consequences. The municipality may own the sculpture, insure it and sell it. Reproducing it in a campaign, or reusing the design at another location, is a different matter and needs permission.
If you want more as a commissioning party, set it out in the agreement. And bear in mind that on an assignment or exclusive licence by the maker, only those rights pass that are expressly stated or that necessarily follow from the nature and purpose of the agreement.
Maintenance and restoration of art in public space
There is a manual for it. In 2020 the Cultural Heritage Agency brought out its step-by-step plan for art in public space, on management and preservation. Value assessment, monitoring, damage, storage and transport are all covered.
One point in that plan gets skipped most often in practice. Anyone intending to dispose of a work has to inform the artist or the heirs in good time.
For a municipality with its own art collection that plan is a workable basis. It does not replace a legal check, because whether an intervention amounts to an impairment of the work remains a copyright question.
Relocating or removing a work
This is the heart of it. In 2004, in Jelles v the municipality of Zwolle, the Dutch Supreme Court held that the total destruction of the object in which a work is embodied is not an impairment within the meaning of article 25(1)(d) of the Copyright Act. As owner you may therefore destroy without the maker being able to rely on that moral right.
There is an important qualification. Where the work is a unique example, the owner may be expected to destroy it only where there is a sound reason, and to provide documentation or give the maker the opportunity to do so. An owner who fails in that may be abusing a right and acting unlawfully.
That line has been applied several times since. In the cases around the Virtuele Boteringepoort in Groningen, the interim relief judge first held that removal could be an abuse of rights where the municipality looked only at maintenance costs. In the end the removal stood, because the repair costs were high and the court of appeal found in 2017 that the municipality had prepared, announced and carried out the removal carefully. A 2021 case in Zeist followed the same pattern: no infringement of moral rights, but careless because the artist had not been informed.
The practical lesson is simple. A sound reason and a careful process decide the outcome, not whether the work is admired. Inform the maker or the heirs in advance, record the reason, document the work, and give the artist room to think along about an alternative.
More about moral rights and impairment of a work →
Municipal liability when an artwork causes harm
A sculpture children climb on, an element that works loose, a sharp edge at eye level. The possessor of a structure that does not meet the standards it should meet, and that creates a danger as a result, is liable if that danger materialises. That is article 6:174 of the Dutch Civil Code, and structures include works permanently attached to the ground.
Whether a particular artwork qualifies as a structure depends on its construction and anchoring. Ordinary tort liability can also come into play, and for a work children play on, possibly the rules on play equipment as well.
For a municipality that means one thing: include art in the regular inspection rounds and record those inspections. A management file is not only heritage care, it is also your defence.
Photographing art on the street: freedom of panorama
Article 18 of the Dutch Copyright Act allows works of visual art and architecture made to be permanently placed in public places to be depicted as they are found there. A photograph of the sculpture on the square is therefore allowed, commercial use included.
The limits sit in the wording. The work has to be intended to stand permanently in that public place, and the image has to show the work as it is found there. A crop leaving only the artwork, or a reproduction detached from its surroundings, does not automatically fall within it. And in a compilation, no more than a few works by the same maker may be included.
Get in touch with Jaap Versteeg
Are you preparing a commission for public space, or is there a decision to relocate or remove a work? Get in touch with Jaap Versteeg. Call 020 675 88 21 or email him for an initial consultation.
