Update: This article outlines the position prior to 25 January 2022.
An update can be viewed here
The Australian Aboriginal flag has been recognised by the Australian government since 1995 as an official “Flag of Australia” under the Flags Act 1953.However, the copyright is owned by the flag’s author, Australian artist Harold Thomas. Thomas is a Luritja man from central Australia and a member of the Stolen Generations.
The copyright owner of any artistic work has a significant degree of control over how it can be used, particularly in respect of commercial use. In Australia, a term of copyright subsists for the life of the author plus 70 years after their death.
The Australian Aboriginal flag’s design and colours reflect the Aboriginal people and their spiritual connection to the land. The black symbolizes the Australian Aboriginal people, the red symbolizes the red ochre of the earth, and the yellow circle is the sun.
In 2018, Thomas granted an exclusive worldwide copyright licence to WAM Clothing Pty Ltd to use the flag on clothing. Since then, WAM Clothing has granted licences to third parties to use the flag on clothing, with royalties being paid to Thomas. However, when WAM Clothing issued cease and desist letters to Aboriginal-owned companies who were using the flag on clothing without a licence, this sparked criticism in the Australian Aboriginal community who felt that it was unfair that a non-indigenous owned company was preventing use of and profiting from the Australian Aboriginal flag.
The co-owner of WAM Clothing was also the owner of Birubi Art Pty Ltd, a company ordered to pay $2.3 million for making false or misleading representations about products, following action by the Australian Competition & Consumer Commission. Birubi had sold almost 50,000 boomerangs, bull roarers, didgeridoos and message stones which it claimed were hand-painted by Australian Aboriginal persons when in fact they were all made in Indonesia.
This public outcry gave rise to the “Free the Flag” campaign, with over 145,000 people signing a petition to the Australian government to create viable channels for new licencing agreements, especially those for Aboriginal organisations and businesses. The campaign seeks to allow Indigenous people to use the flag without the need to obtain a licence from WAM Clothing. How this might be achieved is not clear, but campaigners are calling on the government to take action.
Acquisition of property by the government is technically permitted, under Section xxxi of the Australian Constitution, where the acquisition is "on just terms". However, it is unclear whether the compulsory acquisition of the copyright from Harold Thomas could be acquired on just terms. According to Indigenous academic Marcia Langton this would be “unconscionable” because Thomas is a member of the Stolen Generations and this would be the second time for “the government to cause him harm”. Indeed, restricting the rights of Mr Thomas would deprive him of his exclusive rights as copyright owner and likely set a dangerous precedent for the rights of artists.
We are still awaiting further news on how negotiations between the Commonwealth government and Harold Thomas.
This is an unusual case where copyright subsists in an official flag. In many countries, official flags are in the public domain and are not protected by copyright, trade mark or design laws. In the US, government works are specifically precluded from copyright protection under 17 U.S.Code § 105.
If you are thinking about using official flags in any aspect of your branding, it is important to ensure that you have permission. If the flag is not in the public domain, then you will need to obtain consent from the copyright owner which usually takes the form of a licence.
At present, a licence is required to use the Aboriginal flag on clothing, merchandise or for flag manufacture. If you have any questions about copyright or indeed in relation to obtaining a licence in relation to the Australian Aboriginal flag then contact Clare Liang.
The contact details for Harold Thomas and the identity of his exclusive licencees can be found here.