Aboriginal Flag Flies Freely After $20 Million Deal with Federal Government

KEY TAKE -OUTS

• Artist Harold Thomas created the design in 1971 and acquired intellectual property rights in the flag. This meant that the use of the flag required permission and usually a licence fee.
• The Federal Government secured the Aboriginal Flag under a $20m deal.
• The Aboriginal flag is now available for public use.

The iconic symbol of Indigenous Australia is now available for public use following a $20 million deal between artist Harold Thomas and the Australian Federal Government.

The Aboriginal flag was designed by Luritja artist Harold Thomas in 1970 to represent Indigenous Australians and their connection to the land. In 1995, the Aboriginal flag became the official flag of Australia. The use of the flag’s imagery was determined by asking permission or paying a licence fee to the copyright holders.

In late 2018, the exclusive rights to use the emblem was controversially purchased by non-indigenous clothing company ‘WAM Clothing’. Over the years, WAM Clothing has issued multiple cease-and-desist notices to companies and individuals who used the imagery. WAM will keep its exclusive licence to manufacture Aboriginal flags for commercial use but will no longer be able to stop people from making their own flags for personal use.

As part of the $20 million agreement, the government will establish $100,000 worth of annual scholarships to Indigenous students. Mr Thomas plans to establish a not-for-profit Australian Aboriginal Flag Legacy to make periodic disbursements aligned with the interests of Indigenous Australians and the flag.

The Commonwealth now holds the copyright over the Aboriginal flag, meaning it is now available for free use. This historic buyout marks an end to the long-running dispute regarding the free use of iconic Indigenous symbols.

The Aboriginal flag will now be managed in a similar manner to the Australian Flag, where its use if free but must be presented in a “respectful and dignified way”.

How did this happen? – the law of copyright

Copyright in Australia is regulated by the Copyright Act 1968. In Australia, copyright is not protected by registration but rather exists in different categories of works. Copyright subsists in original literary, dramatic, musical, or artistic works and is protected for a period of generally 70 years (although this timeframe differs depending on the type of work).

Being the original author of copyrighted works will allow the author to have exclusive rights and use of the work. They can additionally sell, or licence the rights to third parties and are able to charge a fee for such licencing and sale.

In the event that a third party does not obtain a licence, permission to use or purchase the copyright, and uses the works, then that third party would be considered as having infringed the copyright and can face litigation proceedings.