Amenity or fixture: the answer decides who pays for a work, who owns it and who can remove it.

On a residential tower or a branded residence, the budget question usually comes before the brief. It cannot be answered in that order. An art budget rests on decisions about ownership, permanence and who is still paying in ten years. Until those are made, any figure is a guess.

Published by ArtisDomus, written by Polina Surina.

On a development the art decision is split between four parties, so it often goes to whoever asks last.

This leads to two common failures. Briefed by sales alone, the programme is made for photographs and has no money set aside to run it. Briefed by the design team alone, it becomes an order for objects of a set size, palette and price. That is procurement, and ArtisDomus does not take it on. The brief that works comes from the developer, in writing. It names the design team as the party to coordinate with, and the future owners’ body as the party that inherits the programme.

On this route a developer can inherit a conflict without noticing. When art is bought through a specifier, part of the price can flow back to whoever specified it. How interior designers source art, and where the trade discount sits explains what the designers’ own codes require on conflicts, fees and inducements. On a development ArtisDomus takes the developer’s brief in writing. It takes no commission from a seller in any form and no share of any discount, and its list of refusals is public.

This question decides the budget, yet it is rarely asked before the work is commissioned. There are three distinct cases.

As an amenity. The work belongs first to the developer, then to the management company, and stands in the common parts. It costs money for as long as it stands there: insurance, cleaning, condition, lighting, and in time conservation or replacement. It is an operating cost, and someone must keep paying it after the developer has gone. If nobody has agreed to pay, the work is left orphaned in a lobby. That is the most common end for a residential art programme.

As a fixture. The work is attached to the building and passes with it. It cannot be lent. It cannot be sold separately from the property. Removing it is a change to the building. Decide this before the work is made, because it changes the fixing, the structural provision, the insurance, the copyright licence and the sales contract.

As stock. A work bought to dress a show apartment is stock, there to be sold or moved. The sales contract must say whether it is included in the sale of the apartment. A buyer who saw the room and assumed the picture came with it may have a complaint about how the apartment was described.

In all three cases copyright is separate and does not pass with the object. Paying for a commissioned work buys the object; reproducing it needs a licence. Each use needs its own permission: the developer’s marketing, the agent’s brochure, the building’s signage and website, and any use by residents or a magazine. Name every use in a written licence, obtained at the same time as the work. Who owns copyright in a commissioned artwork sets out the rules for the United Kingdom and France, including moral rights. In France these are perpetual and inalienable: they last for ever, and the artist cannot give them up.

A budget has nine heads. The key point is which of them sit inside the construction contract, because those must be priced together with the contractor’s packages.

Heads two and three decide whether a budget survives. They belong to the contractor’s packages. If the programme reaches them after tender, it buys them as variations: extra work, priced by a contractor who faces no competition at that point. This explains the common complaint that art on a development cost more than expected. Usually it was simply bought late.

Insuring and cataloguing a collection split across two countries covers the head most often left out of a development budget. It explains what a record must contain, and how one policy wording ties cover to the addresses in its schedule.

A breach is a work that fails its specification. Disliking the result gives no claim. When a commissioned work arrives wrong, the developer’s options depend on what the document said the work had to be. So the specification should be written by someone who expects to rely on it.

The commissioning agreement settles seven things. First, what the work must be, in terms clear enough to test. Second, the approval points and who signs each. Third, who holds the fabrication contract, and what happens if the fabricator fails. Fourth, the copyright licence, with each use named. Fifth, moral rights, and what can and cannot be waived under the governing law. Sixth, how the installed object is treated: cleaning, relighting, moving, altering, and whether the artist must be consulted. Seventh, what happens if the work fails the specification, including who pays to remove it and reinstate the building around it.

The clause most often missing is the one on treatment of the object. On a residential building it is the one most likely to be needed. In five years the party cleaning or moving the work will be a management company that was not in the room.

When a commissioned work disappoints explains the remedies under UK and French law, and how a business client stands differently from a consumer. Who owns copyright in a commissioned artwork covers the rights side.