By Anika Valenti, Solicitor, Arts Law Centre of Australia, adapted from the work of John Berg, Arts Law Secondee, who undertook the research for Arts Law’s art in prisons positions paper.
Whilst in prison, PV created a painting as part of a rehabilitation program. In return for agreeing to allow the prison service to hang his painting in a recreation area of the prison, PV was to receive $120 worth of “buy-ups” at the prison shop. PV never received the “buy-ups”. At a later date, PV saw his painting, without accreditation, reproduced on a poster advertising the rehabilitation program. PV never gave permission for his painting to be reproduced in this way.
With the assistance of a law firm acting pro bono, Arts Law took up PV’s matter with the prison service and a settlement was reached whereby PV received an appropriate amount of compensation for the infringements of his copyright and moral rights in the painting he created whilst in prison.
CURRENT LAW AND POLICY RELATING TO ART IN PRISONS
Arts Law supports the view that recognition and encouragement of prisoner’s involvement in creative activities whilst in prison is beneficial to both prisoners and society. Arts Law advocates for the assertion of prisoner’s rights in the artistic works they create when in prison, and operates education workshops for prisoners about the rights they retain in those works. Arts Law is currently in the process of creating a positions paper that considers the law and policy relating to the creation of artistic works in Australian prisons.
The following article provides a brief overview of the information we have collated so far:
To varying extents, prisoners in Australia are provided with the opportunity to engage in the creation of artistic works via prison programs or during their recreation time whilst in prison. Available research shows therapeutic and educational benefits to prisoners able to participate in creative activities whilst in prison. The benefits of art programs within prisons can extend to the greater community by way of exhibition and display of the fruits of prisoners artistic labour, which ultimately may provide prisoners with new career skills empowering them to reintegrate into society on their release.
As the prison structure in each State and Territory in Australia differs, the treatment of arts-related work created by prisoners while incarcerated varies greatly. All states and territories have made progress in establishing rehabilitation programs and it seems clear that, with varying degrees of difficulty, a prisoner will be able or even encouraged, to engage in art-related work in all states and territories. Ownership of the resulting artistic work and sale or disposal of such work is less clear.
Arts Law advocates the rights of prisoners to sell and receive fair reward for reproduction of artistic works created in prison. Prisoners work is encouraged and rewarded by prison authorities who provide prisoners with an income for their efforts, albeit a low one. In the same way, where prisoners create saleable artistic works, prison authorities should encourage and reward this activity. All Australian states and territories have general legislative provisions regulating prisoners’ work and remuneration, but Queensland is the only state that has specific legislative provisions relating to the creation, sale and transfer of artistic work created in prison. Unfortunately, Queensland’s legislation, while encouraging prisoners to engage in art-related work, prohibits prisoners from selling their artwork while in prison.
In light of the legislative silence on this subject in all other states and territories, prison authorities appear to have a wide discretion to introduce policies and make decisions about prisoner engagement in art and the disposal of any resulting art. Of real concern is that the rights of artists under Australian law are not taken into account or specifically undermined, as in Queensland. On a positive note, it should be noted that Western Australia and New South Wales do deal with prisoner artwork in their policies, rather than legislation, and permit prisoners to exhibit and sell their artwork and benefit from the revenue generated.
Arts Law’s final positions paper concerning the creation of art in prison will be available soon.
 See Alexandra Djurichkovic article “Art in Prisons: A literature review of the philosophies and impacts of visual arts programs for correctional populations” (Working Paper No 3, UTS Shopfront Student Services, University of Technology Sydney, 2011).
 See Karen Heseltine, Andrew Day & Rick Sarre’s research and public policy study, Prison-based correctional offender rehabilitation programs: The 2009 national picture in Australia, Australian Institute of Criminology, 2011. Viewed 19 June 2013 http://www.aic.gov.au/publications/current%20series/rpp/100-120/rpp112.html
 Corrective Services Act 2006 (Qld).