Thing 002296 (Mount Whymper)

In late November, 1986, John Hawley, who was incarcerated in Frontenac Institution, a minimum security establishment in Kingston, Ontario Canada, approached the prison authorities with a proposal to make a mural in the Visitors’ & Correspondence room. At that time Hawley was sitting a 10-year sentence for a series of armed robberies in 1980. He provided the authorities with a small portfolio of photographs so that they could decide what particular theme would be appropriate. In December, 1986, a painting based on a photograph of Mount Whymper in Kootenay National Park was approved. On January 23, 1987, Hawley received a written permission by the work board to undertake his suggested assignment. He was transferred to the community services department, which was run by Bernard Aucoin. Rather than doing a mural they agreed upon a large painting. Art supplies were ordered together with a 3 m2 masonite board. Hawley was given access to the hobby room during working hours to paint. Over the course of four months Hawley made the painting Mount Whymper. For this large acrylic painting he used the air-brush technique. On April 10, 1987, the painting was framed and installed on one of the dining-room walls.

In October of 1987 John Hawley was released on parole. Since then he has been running a successful commercial art and design studio in Toronto. The painting Mount Whymper remained in the possession of Frontenac Institution.

In 1990 Hawley stated that he had been deprived of his work of art made in prison. Hawley claimed in a legal action against warden George Downing and the Correctional Services of Canada that the painting belonged to him and that Frontenac Institution had no right to keep it. Frontenac Institution alleged that it is the legal owner of the painting, that the work was done as a commission by the prison authorities, that it was created during Hawley’s working periods and that the Crown is entitled to the rights of it. On April 24, 1990, the court case Hawley v. Canada was heard at the Federal Court. Justice Louis-Marcel Joyal held that:

[Hawley] says that the painting was done on his own time. It was not part of his assigned duties. [...] According to the warden, [Hawley] was to be given a special assignment to do a painting for the institution. [...] [O]n balance, the evidence, specially the documentary evidence, is more consistent with an employment relationship having been established with respect to the Mount Whymper painting and, in accordance with section 13(3) of the Copyright Act, ownership of it vests in the Crown. [...] The gain might only be in the neighbourhood of $6 per diem but it was employment nevertheless. [...] As early as January 23, 1987,[...] it was recognized that he was now the institutional artist employed to paint a large mural for Visitors & Correspondence room. The fact that the large mural became a large painting hanging in the dining-room is of no consequence. [...] In my mind, it would have been inconsistent with the institution’s policies, with its program of work-board assignments, with its necessary and continuing supervision over the carrying out of these assignments in proper and orderly fashion, to conclude that [Hawley] would be given free scope to engage in any artistic endeavor over a three-month period and that, upon the eventual completion of the work which he was specifically asked to do, the ownership of it would remain with him. [...] It could also very well be that [Hawley] spent many of his leisure hours on the project. [...] I need not, however, make specific findings in that regard because, in my respectful view, nothing having to do with the ownership of the painting flows from it. [...] Unfortunately for [Hawley], I have no evidence before me that the terms and conditions of his assignment were amended or modified in the three-month period between January and April, 1987. [...] As a consequence, whatever honest perceptions [Hawley] might have gained as the work progressed, are submerged to a large extent by the more objective evidence to which I have referred and which brings the issue clearly within the terms of ordinary contract law or within the terms of the Copyright Act. In effect, I am finding that in dealing with a literary work or a work of art made or created by an inmate in a penal environment, there is no reason to apply different criteria or to depart from normal rules.

The court dismissed Hawley’s action and found that it was a “work for hire” and that the copyrights of the painting were owned by the employer: the Crown.