The Copyright Sale of the Aboriginal Flag: What Does that Mean for the Future?
Written by Ji Robinson Stone, Annabelle Burgess and Terri Janke
On 26 January 2022, the copyright in the Aboriginal Flag was purchased by the Australian government from its creator, Harold Thomas. The purchase of the copyright in the Aboriginal flag came about when a licensee of the exclusive right to reproduce the flag on clothing and souvenirs, WAM Clothing, exercised its rights in sending cease and desist letters to Indigenous clothing companies and AFL and NRL Australia for their use of the flag on clothing and jerseys. The Senate Committee into the Aboriginal Flag established in the lead up to the acquisition describes WAM Clothing’s approach in enforcing their licensee rights in the flag copyright as heavy handed.
Harold Thomas, who is a Luritja man, created the red, yellow and black flag in 1971, as a symbol of the Aboriginal land rights movement. The Aboriginal Flag was officially proclaimed a “Flag of Australia” in 1995. Following this, Thomas took action for recognition of copyright ownership of the work in the case of Thomas v Brown. The case confirmed Thomas was the creator and copyright owner of the Aboriginal Flag.
Thomas described the means the following; the yellow represents the sun, the constant re-newer of life; Red depicts the earth and peoples' relationship to the land; and, The black symbolises Aboriginal peoples. After the case, Harold Thomas entered into multiple exclusive licensing agreements including with WAM Clothing and Flagworld.
The WAM license caused controversy for many Aboriginal sports groups and artists. In 2019, WAM Clothing sent cease and desist letters to companies making clothes with the Aboriginal Flag, including Indigenous owned business such as Spark Health Australia and Clothing the Gap. Harold Thomas had not enforced his copyright before this.
In response to WAM’s exercise of copyright in the form of cease and desist letters, a movement known as ‘Free the Flag’ was established by Clothing the Gaps co-founder Laura Thompson.
Senate Select Committee
In October 2020, a Senate Select Committee on the Aboriginal Flag was established to investigate the current status of the copyright in the flag and the licensing agreements that had been entered into by Harold Thomas. The Committee provided recommendations on how best to move forward in the management of the Aboriginal Flag copyright in a way that would minimise Aboriginal cultural impact. The key recommendations from the Senate Select Committee were that the Commonwealth government should not compulsorily acquire the copyright for the Aboriginal flag under Section 51(xxxi) of the Australian Constitution, and that an Aboriginal identified and controlled government body should maintain and control the copyright in the Aboriginal flag in order to make decisions that maintain the integrity and uphold the dignity of the Aboriginal flag.
What were the terms of the Acquisition and how does that effect the reproduction rights of the flag now?
The terms of the acquisition deal are:
Mr Thomas was paid $13.75 million by the federal government for the copyright. Mr Thomas has indicated that he intends to establish an Australian Aboriginal Flag Legacy not-for-profit to make periodic disbursements aligned with interests of Aboriginal Australians and the flag.
A further $5.2 million was paid to non-Indigenous company WAM Clothing, which had been granted exclusive use of the flag in 2018.
The Australian Government will provide an annual scholarship in Mr Thomas’ honour worth $100,000 for Indigenous students to further the development of Indigenous governance and leadership.
The National Indigenous Australians Agency will create an online history and education portal for the flag.
An original painting by Harold Thomas recognising the flag’s 50th anniversary and the historic transfer of copyright will be gratefully accepted and displayed in a prominent location by the Australian Government.
How does the purchase affect use of the work and current licensees?
This Acquisition will allow commercial reproduction of the flag in types of apparel, towels and souvenir type products freely by Indigenous people and non-Indigenous people alike. Reproduction of the flag as a flag and in bunting will still be restricted under the Flagworld license. AFL and NRL Australia will also be able to print Jersey’s and sporting equipment for their Indigenous rounds.
There have been mixed responses from the community to the acquisition of the copyright in the Aboriginal flag by the Australian government. There are two main perspectives, the first being that it is a necessary step in order to gain access to the reproduction rights of the flag even if it means becoming Commonwealth owned.
Conversely, there are concerns that without an Indigenous body taking control, or any limitations imposed on reproductions of the Flag, many non-Indigenous and fast production type companies will out-produce Indigenous businesses which will affect the Indigenous business sector. One protection for this is Harold Thomas retaining moral rights in the flag, however it will be difficult to manage the integrity of the flag and ultimately enforce his moral rights. Addressing the positive and negative balance of allowing use but without limitation, Laura Thompson of Clothing the Gaps has said that “I feel like this is as good as we’re going to get in terms of freeing the Aboriginal flag.” There are calls for broader constitutional change such as a treaty and a voice in the parliament, that will impact Indigenous culture as a whole (See: The Uluru Statement for the Heart). In submission to the Select Committee on the Aboriginal Flag, the National NAIDOC Committee endorsed the position that an Indigenous government regulatory body should be established and hold the copyright interest in the Aboriginal flag in order to protect its integrity.
If you would like to know more about the acquisition and copyright in the Aboriginal flag, copyright generally or Indigenous Cultural and Intellectual Property, contact Terri Janke and Company on (02) 9693 2577 or email firstname.lastname@example.org.
_______________________________________  Harold Joseph Thomas v David George Brown & James Morrison Vallely Tennant  FCA 215 (9 April 1997).  ‘Why Gaps? The facts and timeline around why Clothing The Gap added the ‘S’’, Clothing the Gaps (Web Page, 17 April 2021) <https://www.clothingthegaps.com.au/blogs/blogs/why-gaps-the-facts-and-timeline-around-why-clothing-the-gap-added-the-s>.  Lorena Allam, ‘Deal to ‘Free’ Aboriginal Flag Welcomed-But Questions Remain’ The Guardian (online, 25 January 2022) <https://www.theguardian.com/australia-news/2022/jan/25/deal-to-free-aboriginal-flag-welcomed-but-questions-remain>.  National NAIDOC Committee ‘Submission to The Senate Select Committee On The Aboriginal Flag’ (Submission No 52, Select Committee on the Aboriginal Flag, September 2020) 5 <https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Aboriginal_Flag/AboriginalFlag/Submissions>.