Public Art Programs: 1% for the 99% - Part One

by Sheppard Mullin Richter & Hampton LLP

The Art Law Blog introduces the first in a series of three articles on "percent-for-art" programs. The common purpose of percent-for-art ordinances is to invigorate the public cultural environment, and to develop and enhance public interest in the visual arts by creating enduring and specific art for public spaces. Some jurisdictions even articulate this goal as their “responsibility”.

We are currently witnessing bustling activity in public art – indeed, art in public spaces is flourishing. The importance of public art is safely anchored in the public mind. This has been achieved through the development and implementation of public art programs throughout the nation, since the New Deal and in the post-WWII era.

More recently, however, the dire economic situation both nationally and internationally has threatened funding for public art –many deem it to be one of the first sources to be cut in order to reallocate priorities.

But, thankfully, this trend was countered by the latest boom in real estate and construction. As supporting evidence, take LAX’s new expansion project totaling a staggering $4.1 billion – and Los Angeles is not the only city where the airport is getting a makeover: airports in the cities of New York, Dallas, and Chicago are but some examples. Charlotte, Atlanta and Las Vegas all have improvement and expansion projects ranging from $1 billion to $2.4 billion; other cities are currently in negotiations with airlines to obtain financial support for their own projected developments.

This is good news for public art as most of these construction initiatives include artwork as part of their projects. The most likely funding source is through percent-for-art ordinances – a type of public art program that emerged in the 1950s, and expanded in the last few decades.

Percent-for-art programs require that a certain percentage of the cost on large-scale development projects be allocated to fund and install public art to be exhibited and regularly accessible to the general public. This percentage generally ranges from 0.5 to 2%, with most programs adopting the classic 1%. These funds provide for the acquisition of existing art or for the commissioning of new works of art. The art may be an integral part of the architectural and functional aspects of the project, or a separate formal element of the site.

Such programs are typically aimed at construction and remodeling projects. They are planned through governmental construction initiatives or by private developers building private structures in percent-for-art jurisdictions. In the latter instance, the owner of a development project for a commercial or industrial building will be required to incorporate public art in the project or pay an arts fee. Depending on the ordinance, there could be additional provisions, such as a specific minimum threshold of construction costs for the program to apply; community input during the artist selection process; a residency requirement favoring local artists; or residential projects included in some public art programs.

Presently, the percent-for-art programs administered in Los Angeles make it overall the largest initiative in the United States. Los Angeles’s policy since 1989 has been to allocate 1% of all capital improvement costs to commission public artwork, whether undertaken by the City or by private developers, and the “Downtown Art in Public Places” program requires that 1% of private development costs for new commercial and market-rate residential developments be committed to involving artists in the project and enriching the Downtown Cultural Trust Fund. Similar public art programs exist in neighboring Santa Monica, West Hollywood, Beverly Hills (allocating 1.5%) and Culver City (which occasionally acknowledges architecture as public art).

Other west coast cities are similarly engaged. San Francisco and San Diego set aside 2% of qualified public works costs for art, and provide for private projects as well. San Diego also has a mandatory set aside of 0.5 to 1% for art and/or cultural facilities in non-residential development projects where a building permit value exceeds $5 million. San Francisco’s ordinance has long applied to all private development within its downtown core, and new amendments allow the developer to place some of the set aside into a trust for off-site or temporary public art installations.

On the east coast, the classic 1% is favored by a number of cities including New York City, Philadelphia, Washington D.C., Pittsburg, Charlotte and New Haven, among others. In these cities, too, percent-for-art ordinances apply to private as well as public construction projects. New York City’s “Percent-for-Art Law” states that no less than 1% of the first $20,000,000 plus no less than 0.5% of the exceeding amount should be allocated for artwork, capped at $400,000 per commission. Philadelphia’s policy is more limited in that it that applies to public buildings (including bridges, arches, gates and structures paid for wholly or in part by the city) and to private developers only when they purchase public land through the Philadelphia Redevelopment Authority. Nationwide, diversity rules: artful and full of art Chicago opted for 1.33%, while no city in the state of Texas could agree on a uniform percentage (Dallas ranges from 0.75 to 1.5%, Houston is 1.75%, Austin is 2%).

Many states are also in the art business. Art is mandated in state-financed buildings through art enrichment programs in 25 states. On the federal level, the percent-for-art initiative is administered by the General Services Administration’s Art in Architecture Program, a longstanding program which oversees the commissioning of artworks for new federal buildings nationwide. The program earmarks 0.5% of the estimated construction cost of each new federal building to commission project artists. The GSA program has commissioned artworks from 1997 to 2008 from significant American artists including Ellsworth Kelly, Alice Aycock, Martin Puryear, Maya Lin, Jim Campbell, Jenny Holzer, James Turrell and Edward Ruscha, among others; and more recently, from artists such as Robert Irwin, Sol LeWitt, Robert Mangold, Pae White, Leo Villareal, Spencer Finch, Tony Feher and Do Ho Suh, among others.

Given the success of these programs and the positive impact the resulting artwork has had on communities, the field has become more sophisticated, more complicated and more regulated. As a result, the importance of carefully negotiated contracts cannot be overstated. In our next post, we will examine some deal points to be considered when negotiating such agreements. And, finally, Part III will examine ongoing litigation involving high-profile public art… To be continued.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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