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One of the most divisive episodes in Australian copyright law has finally been resolved, with the creator of the Australian Aboriginal flag transferring ownership of copyright to the Commonwealth of Australia.

Aboriginal flag’s copyright long debated

While the public has long considered the Aboriginal flag to be a unifying symbol of Australia’s Indigenous population, a Federal Court judgement in 1997 recognised that copyright in fact belonged to its creator Harold Thomas.

In 2019, this resulted in some very public disputes between non-Indigenous company WAM Clothing, which had taken a licence from Mr Thomas to reproduce the Aboriginal flag on clothing, and others wanting to use that flag. First there was a dispute with Aboriginal-owned business Clothing the Gap, which wanted to feature the flag on T-shirts and towels, and was sent a legal demand by WAM Clothing.  Then there was a dispute with Australia’s major football codes over the use of the flag on jerseys during their annual Indigenous Rounds.

That spurred a “free the flag” push that reflected popular opinion: a readers’ poll in The Age at the time indicated that 79% of people did not think that the Aboriginal flag should be subject to copyright.

commonwealth acquires copyright of Aboriginal flag

In a $20 million settlement, the Commonwealth has acquired copyright in the flag from Mr Thomas.  The government will also provide an annual scholarship worth $100,000 for Aboriginal and Torres Strait Islander students in Mr Thomas’ honour.

It is interesting to read Mr Thomas own opinion piece, published by The Age yesterday, that he “created the flag … as a symbol of unity and pride”. In his words, with the change in ownership “the flag will remain, not as a symbol of struggle, but as a symbol of pride and unity.”

Interestingly, while Mr Thomas is now in his 70s, he has proven to be a modern man of the times. In his own opinion piece, he revealed that prior to transferring copyright he created a non-fungible token (NFT) as the authentic digital representation of the flag, to commemorate its 50th anniversary. It is not fanciful to suggest that this NFT may one day be more valuable than the original $20 million transfer fee.

creator retains ‘moral rights’

Mr Thomas will retain moral rights over the flag, as these rights cannot be assigned and are personal to the original creator. This means that Mr Thomas will retain the right, under section 195AI of the Copyright Act 1968, not to have the work subjected to derogatory treatment.

In practice, the moral rights restrictions are unlikely to be a practical impediment to the fair and proper use of the Aboriginal flag. Under section 195AK, derogatory treatment of an artistic work comes down to doing something that is prejudicial to the author’s honour or reputation. It is difficult to imagine any fair and proper use of the Aboriginal flag would impact Mr Thomas personally in such a manner as to infringe his moral rights.

the take-away

With the assignment of copyright, the Aboriginal flag is now free for anybody to use. In the words of the Federal Minister for Indigenous Australians, the Hon Ken Wyatt, “[i]n reaching this agreement to resolve the copyright issues, all Australians can freely display and use the flag to celebrate Indigenous culture. Now that the Commonwealth holds the copyright, it belongs to everyone, and no one can take it away.”

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Aboriginal flag becomes free to use after copyright transfer

25 January 2022
nils versemann

One of the most divisive episodes in Australian copyright law has finally been resolved, with the creator of the Australian Aboriginal flag transferring ownership of copyright to the Commonwealth of Australia.

Aboriginal flag’s copyright long debated

While the public has long considered the Aboriginal flag to be a unifying symbol of Australia’s Indigenous population, a Federal Court judgement in 1997 recognised that copyright in fact belonged to its creator Harold Thomas.

In 2019, this resulted in some very public disputes between non-Indigenous company WAM Clothing, which had taken a licence from Mr Thomas to reproduce the Aboriginal flag on clothing, and others wanting to use that flag. First there was a dispute with Aboriginal-owned business Clothing the Gap, which wanted to feature the flag on T-shirts and towels, and was sent a legal demand by WAM Clothing.  Then there was a dispute with Australia’s major football codes over the use of the flag on jerseys during their annual Indigenous Rounds.

That spurred a “free the flag” push that reflected popular opinion: a readers’ poll in The Age at the time indicated that 79% of people did not think that the Aboriginal flag should be subject to copyright.

commonwealth acquires copyright of Aboriginal flag

In a $20 million settlement, the Commonwealth has acquired copyright in the flag from Mr Thomas.  The government will also provide an annual scholarship worth $100,000 for Aboriginal and Torres Strait Islander students in Mr Thomas’ honour.

It is interesting to read Mr Thomas own opinion piece, published by The Age yesterday, that he “created the flag … as a symbol of unity and pride”. In his words, with the change in ownership “the flag will remain, not as a symbol of struggle, but as a symbol of pride and unity.”

Interestingly, while Mr Thomas is now in his 70s, he has proven to be a modern man of the times. In his own opinion piece, he revealed that prior to transferring copyright he created a non-fungible token (NFT) as the authentic digital representation of the flag, to commemorate its 50th anniversary. It is not fanciful to suggest that this NFT may one day be more valuable than the original $20 million transfer fee.

creator retains ‘moral rights’

Mr Thomas will retain moral rights over the flag, as these rights cannot be assigned and are personal to the original creator. This means that Mr Thomas will retain the right, under section 195AI of the Copyright Act 1968, not to have the work subjected to derogatory treatment.

In practice, the moral rights restrictions are unlikely to be a practical impediment to the fair and proper use of the Aboriginal flag. Under section 195AK, derogatory treatment of an artistic work comes down to doing something that is prejudicial to the author’s honour or reputation. It is difficult to imagine any fair and proper use of the Aboriginal flag would impact Mr Thomas personally in such a manner as to infringe his moral rights.

the take-away

With the assignment of copyright, the Aboriginal flag is now free for anybody to use. In the words of the Federal Minister for Indigenous Australians, the Hon Ken Wyatt, “[i]n reaching this agreement to resolve the copyright issues, all Australians can freely display and use the flag to celebrate Indigenous culture. Now that the Commonwealth holds the copyright, it belongs to everyone, and no one can take it away.”