WWYH: “Eyes on the NYC Department of Cultural Affairs” and Changing Policies

By Heather DeSerio*

On February 28, 2017, the New York State Bar Entertainment, Arts and Sports Law’s Fine Art’s Committee (EASL) hosted a brown bag lunch with Kristin Sakoda, Deputy Commissioner and General Counsel of the New York City (NYC or the “City”) Department of Cultural Affairs (DCLA or Department). Sakoda is a veteran at the DCLA and runs an all-female department of three attorneys. She presented to a room full of lawyers working in the arts about the DCLA’s mission the types of legal issues involved in the agency’s work, and the DCLA’s involvement in shaping the cultural policy of the City. Attendees of the event also learned about how the City administers and manages public art initiatives from the perspective of a lawyer, and the policies that shape the City’s arts-related initiatives.

Background

The creation of the Department of Cultural Affairs has an interesting story about how it became the DCLA that exists today. In 1869, a group of citizens proposed that NYC should build a museum for natural history, which led to the construction of the American Museum of Natural History. Afterwards, a number of museums began construction around the city. Next, followed the formation of an 11-member panel Art Commission in 1898, that oversaw the proposal and installation of permanent works of art, architecture, and landscape architecture on NYC owned property. Around 1934, then-mayor of NYC Fiorello La Guardia, appointed a Municipal Art Committee to advise the City on ways to stimulate New York’s cultural life during the hardships of the Great Depression. The Committee used funds from the Works Progress Administration, the emergency Relief Bureau, and other foundations. It wasn’t until 1968 that the DCLA was created within NYC’s Parks Department. In 1976, under the direction of Mayor Abraham D. Beame, the DCLA became its own department that existed separately from the Department of Parks and Recreation with its own commissioner. This was done so that the needs of the growing DCLA could be met and the Parks Department could better focus on providing for the Parks and Recreation initiatives.  

About the DCLA

The DCLA serves an important function in a city known for being one of the biggest cultural centers in the world. The annual budget on the Mayor’s Office website indicates that the DCLA is the nation’s largest municipal funder of the arts in the United States. During their 2017 fiscal year, their expense budget was $84.81 billion and a capital budget of $14.0 billion through 2018. (For more information about different breakdowns and allocations of funding for New York City see the annual budget by clicking here.)

The Department plays a pivotal role in encouraging and supporting public funding of art, artist residencies, and provides many grants to artists and institutions throughout the metropolitan area. This support contributes to New York’s diverse and robust cultural scene.

The DCLA has three primary funding divisions that provide support for the arts community. First there is the the Program Services Unit, which administers funds to groups that provide cultural experiences for NYC’s residents and visitors. The second funding division is the Cultural Institutions Unit that provides operational support (in the form of unrestricted operating grants and the payment of all energy bills – heat, light and power) for 33 major cultural institutions occupying City-owned buildings or land, such as the Metropolitan Museum of Art. The third division is the Capital Projects Unit (CPU), which provides capital in the form of grants for the design, construction, and equipment for those institutions and other cultural groups in City-owned and non-City-owned facilities. The Capital Projects are funded from the NYC’s Capital budget.

Among their other projects, the DCLA administers New York City’s program Percent for Art, which makes art accessible to the public and visible throughout NYC by commissioning and acquiring art for display in public spaces. As the title of the program implies, 1 percent of the City’s capital is made available for the commission of or acquisition of a public piece of art. There are currently over 400 acquired works displayed around NYC. Click here to view a map of all the public artwork on display that was funded through the Percent for Art Program.  A couple familiar works include the Frederick Douglass Memorial, located in Central Park West and the Triumph of the Human Spirit monument in Foley Square (near the court houses downtown). On February 15, 2017, NYC’s Office of the Mayor released a statement that Mayor de Blasio recently signed off on an increase to the Percent for Art program in the amount of 1% of the first $50 million as indicated in the bill, Intro. 1296-A.

Another key program administered by the DCLA is Materials for the Arts (MFTA). It was  created in 1978. MFTA provides nonprofit and educational organizations with free supplies to support and grow art programs citywide. The program is headquartered in a large warehouse owned by DCLA in Long Island City, New York. MFTA collects reusable materials from a host of donors, and distributes them free of charge to qualifying non-profit arts organizations, City agencies, public schools, and social, health and community service organizations that have arts programs in New York City. Individual artists qualify only if they are financially sponsored by a non-profit organization. Once an entity qualifies, they can request a shopping appointment for materials at the MFTA warehouse or can obtain items through their online listing database. The MFTA also provides training for teachers on how to creatively reuse the donated materials and integrate them into art projects. The MFTA has distributed free supplies to more than 1,900 member organizations and public schools and collected more than 1.2 million pounds of high quality reusable goods valued at $5.8 million from over 1,685 donors, according to the DCLA’s website.

The Department has many new initiatives that focus on increasing support for art institutions and artists. For instance, one of these new initiatives involves integrating art into city services involves placing individual artist to partner with DCAS in the Public Artists in Residence (PAIR) program. There is also the IDNYC Cultural Partnerships where the City offers NYC residents a free ID card that has the benefit of providing free one year membership to venues throughout the five boroughs such as the Museum of Modern Art, the New York City Ballet, the Bronx Zoo, and many more. These programs provide the public with increased  access to art programs to foster art education and more opportunities for residents to become members of cultural institutions to gain free access to museums, zoos, aquariums, and much more.  

DCLA’s Legal Counsel

The DCLA’s legal department provides guidance and support for most of the programs that the DCLA offers. More cultural institutions, museums, government, for profit and nonprofit should take note of the number of attorneys working for the DCLA. There are at least three attorneys that work together to provide support for all of DCLA’s initiatives in conjunction with the NYC Law Department. DCLA’s General Counsel handles a wide variety of issues for the City such as employment law, contracts, artist rights, leases, licensing, and legislative drafting.

The legal department at the DCLA also focuses on the City’s interest in artist rights under the 1990 Visual Artists Rights Act (VARA), 17 U.S.C. § 106A. This provision is relevant when the DCLA commissions or agrees to purchase a work of art to be displayed publicly. Artists who are commissioned by the DCLA or who sell their artwork to the City should be aware of their “VARA rights.” This is because the artist’s moral rights in the artwork are impacted when the agreement is a work for hire agreement or the City includes provisions that indicate that the City has right to control the work or remove it for safety reasons. See, this previous article VARA, Back to the Rescue of Public Art in NYC written by Irina Tarsis of the Center for Art Law, for more information about VARA rights and provide an example of issues that an artist can face with public art agreements.

The DCLA attorneys also work with city council and provide guidance in drafting legislation for the Percent for Art Legislation program by making policy decisions for the department. The lawyers at the DCLA also carefully watch issues at the national level because decisions at the federal level can impact their Department. This is especially true as the new administration is taking office and making significant changes.

Federal Funding and the DCLA

Funding for exhibits is not the only problem that cultural institutions will face. On March 16, 2017, the United State’s Office of Management and Budget, released the proposed Budget for 2018 making it clear that the current administration wants to eliminate funding for the National Endowment for the Arts (“NEA”). The state and local Department of Cultural Affairs across the country face an important question about how they will be impacted by the proposed budget cuts to the NEA. Sakoda pointed to the fact that the federal budget trickles down to the state and then to the city. If the funding received by the State is reduced by the Federal Government it will in turn have a dramatic effect on the amount of available funds that the City receives from the State. Accordingly, the reduced budget the City will receive from the State will be reflected in the City’s reduced funding for grants to artists and cultural institutions. This will result in a decline in funding for exhibitions, art development, art organizations, and other art initiatives. There will also be a reduction in the acquisition of public art, and cultural institutions will be impacted significantly at the local level if the federal budget is reduced.

One of the most concerning issues with the federal cutbacks for the NEA is the federal insurance program that the NEA provides for exhibitions. There is a common requirement in loan agreements that museums must take out insurance for artwork displayed in an exhibit. Insurance is commonly provided by the NEA’s federal insurance program. This federal insurance program plays a huge role in providing insurance for artwork and without it many exhibits would never happen in the United States because major museums across the country would be unable to get insurance on their own for the amount required to put on large exhibits. The New York Observer’s article The Masterpiece Trade: Meet the U.S. Agency That Makes Museum Blockbusters Possible noted the role the federal insurance program plays in bringing major exhibits to museums by pointing out that the Museum of Modern Art displayed a statement that indicating that the recent “‘Henri Matisse: The Cut-Outs’ exhibit from October 12, 2014–February 10, 2015, was ‘supported by an indemnity from the Federal Council on the Arts and the Humanities.’”

For more information about the role that the NEA plays in the arts in the United States please read the article, The Legislative History of NEA and NEH, written by Emily Lanza.

Conclusion

Not only with the programs the DCLA manages trickle down to artists, institutions, and organizations, even public schools will feel the effects of this blunder because they would not receive materials from the Material for Arts Program. Artists will feel the shift in the federal government’s agenda in a dramatic way and be left with little financial assistance to spur creativity and care for artwork outside of the patronage system. It will have a stifling effect on creativity, and a failure to fund the NEA will reduce the number of important exhibitions, development of important non-profit organizations, leasing and acquisition of equipment, and reusable materials for public schools that help provide the public with motivation to develop and come up with new works to be displayed and interacted with.

Without the support and expertise of the DCLA, there is a big question that plagues the future of many publicly funded organizations, institutions, and art projects. The programs that the DCLA department funds are all susceptible to be reduced in proportion to the amount of funding received from the federal government. The policies and legislative initiatives could be altered as well. At this time, there is concern about whether the proposed budget or reduction in NEA funding will be approved by Congress. There are also discussions regarding an approved budget cut’s impact among members of the legal community that work within the creative organizations and individuals.

Helpful Sources

*About the Author: Heather DeSerio (NYLS, JD Class 2017) is a Spring 2017 Legal Intern with the Center for Art Law. In her studies, she is concentrating in Intellectual Property Law. Prior to law school, she worked as a fine artist and received a Bachelor of Fine Arts in Painting from Ringling College of Art and Design. She can be reached at heather.deserio@law.nyls.edu.

Disclaimer: This article is for educational purposes only and is not meant to provide legal advice. Any views or opinions made in the linked article are the authors alone. Readers are not meant to act or rely upon the information in this article and should consult a licensed attorney.

Funding Public Art with Brick and Mortar: The Success and Failure of “Percent for Art” Laws

Jorge Luis Rodriguez, Growth (1985)

Jorge Luis Rodriguez, Growth (1985)

By Emma Kleiner*

Although the thought of East Harlem in 1985 may not immediately spark considerations of aesthetics and community, that was the location and date of the first Percent for Art Project in New York City. In that year, Jorge Luis Rodriguez’s Growth was unveiled there in the East Harlem Artpark, a sculpture dedicated to the intersection of nature and man. Funding for public art works historically came from various sources, including private donors and nonprofit organizations. However, since 1982, New York City’s Percent for Art (PFA) law mandates that one percent of the budget for certain building projects be set aside for public art. Former New York City Mayor Ed Koch, who initiated the law, stated: “For generations to come, it’s a wonderful thing, and I’m very proud of that.” This type of public art law has been mirrored across the nation by many cities and states, and this article analyzes the structure of what makes a successful Percent for Art law. 

New York City’s Percent for Art Program remains one of the strongest in the nation as it strives to bring public art to all corners of the city. Other states, counties, and municipalities around the nation with similar laws include: Chapel Hill, North Carolina; New Haven, Connecticut; Pittsburgh, Pennsylvania; Philadelphia, Pennsylvania; Oro Valley, Arizona. The laws in these cities follow the PFA theme but vary in terms how each program and disbursement is structured and carried out. For example, in some cases, as with the law in New York City, only municipal or City-funded construction projects are mandated to abide by the PFA law, but in other cases, as with the law in Oro Valley, Arizona, public art is compulsory for “all new non-residential and public development projects.” While some public art laws have flourished, like the one in New York City, others have floundered and never gained a strong foothold in the community, like the one in Pittsburgh.

One main feature of a PFA law that affects its ability to succeed is whether the law creates an automatic set-aside for public art or whether the funding must be actively requested. The divide between these types of PFA laws has become particularly apparent in Pittsburgh. The Pittsburgh ordinance, passed in 1977, ceased being enforced about twenty-five years ago, when the city “began including a public-art line item, of about $50,000, in its annual budgets.” Pittsburgh’s PFA law, which requires publicly funded construction projects to set aside 1% of the cost for public art, has gone unenforced for years, and the public started to petition for the law’s enfoncement. One of the main critiques of Pittsburgh’s law is that it became essentially unenforceable because, as reported by the Pittsburgh City Paper in August 2014, the law “requires the department head overseeing a given construction project to actively request artwork for that project — seldom a priority, especially in cash-strapped times.” A possible solution is to make the arts funding automatic, instead of asking for an artwork-funding request that is unlikely to appear in economically difficult times. As a result of Pittsburgh’s PFA law, the community at large has suffered from a deficit of public art and “lost out on thousands, perhaps millions of dollars [worth of art].” The systemic failure of PFA law in Pittsburgh has deprived a city of many public arts projects, and created a situation in which a complete overhaul of the PFA ordinance is necessary in order to enforce any percent for art projects.

In contrast to the situation in Pittsburgh, Oro Valley in Arizona has developed a robust public art law that does not allow developers to shirk the public art requirement. In Oro Valley, the public art law, which has been on the books since 1997, states, “[p]ublic art is a required element for all new non-residential and public development projects.” To aid developers in finding artists and commissioning artwork, Oro Valley’s website contains a public art inventory, which includes the budget for various public art project and the artists’ contact information. The centralization of data has helped Oro Valley’s PFA law to succeed. While making the public art set-aside mandatory in Pittsburgh’s PFA law would be a big step towards enforceability of the law, it would also be necessary to create a database of information about public art in the city. Many developers may have never interacted with public art in the past and may find it daunting to discover and hire an artist. By creating a centralized database with that information, however, developers may be more encouraged in approaching the public art component of their development.

James Turrell, The Color Inside, 84th Skyspace (2008)

James Turrell, The Color Inside, 84th skyspace (2008)

In considering the success and failure of PFA laws, it is critical to be mindful of the many communities that may be impacted by these laws. For example, many Texas universities, including University of Houston, Texas Tech University Systems, University of North Texas, and University of Texas at Austin, have instituted percent for art policies to invigorate the public arts community and cultural landscape on campus. As state legislatures across the country have slashed funding for public universities, oftentimes aimed at cutting the arts and humanities, PFA laws remain a viable way for a public university to inject its campus with an aesthetic component. The strong PFA laws in Texas are stunning examples of how PFA laws can be important for securing public art. The state’s public universities have become some of the most vocal and visual supporters of the law. Several prominent artists have been funded through this program to contribute to the aesthetic landscape of public universities in Texas. James Turrell, who skyrocketed into the public eye over the last few years due to three major retrospective exhibits, recently installed a skyspace at University of Texas at Austin. The universities’ adoption of PFA laws suggest that a strong statewide PFA law that applied to public institutions, including universities, which are chronically underfunded in the arts, could generate the opportunity to for public institutions to grow art collections.

As states, counties, and municipalities struggle to establish strong PFA laws, lawmakers must consider the ultimate enforceability of such laws. The shortcomings of Pittsburgh’s law are good examples of how a PFA law ought to be structured in an enforceable way or risk reaching a tipping point where it is habitually ignored by developers. In contrast, the example provided by Texas demonstrates how the success of a PFA law can bring together different segments of the community to appreciate artwork to which they might not otherwise have access. 

Select Sources:

About the author: Emma Kleiner is a second-year student at Stanford Law School.

Disclaimer: This and all articles are intended as general information, not legal advice, and offer no substitute for seeking representation.