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Freedom to Fly the Aboriginal Flag: Copyright and the Commonwealth

By Hayden Delaney / 18 February 2022
6 min.
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Worthwhile read for: Businesses, In-house Counsel

In a historic announcement on 25 January 2022, Prime Minister Scott Morrison and the Minister for Indigenous Australians, the Honourable Ken Wyatt AM MP stated that copyright in the Aboriginal flag now belongs to the Australian Government and is free for public use.

Despite being a proclaimed flag of Australia under the Flags Act 1953 (Cth), the copyright in the Aboriginal flag was previously held under ownership of Luritja artist Harold Thomas since he created it in 1970. This meant that any use of the Aboriginal flag was subject to the permission of Mr Thomas (or his sublicensees) and any conditions imposed, including payment of a fee.

Partner Hayden Delaney and Solicitor Caitlin Seeto examine the circumstances surrounding the government’s purchase of the Aboriginal flag, as well as the limitations that remain on the flag’s use.

Copyright law

In 1997, the Federal Court of Australia officially recognised Harold Thomas as the author of the flag, which ensured protection of the work under the Copyright Act 1968 (Cth). Copyright is an unregistered property right that allows the copyright owner to exclusively do certain acts with their copyright material, including reproducing in material form (photocopying), publishing, broadcasting, and making available online. In Australia, there are no formalities to obtaining copyright protection as it is automatically granted at the time the work is created. The owner may also grant others permission to do any of these things and can then assert their rights against any third party making any unauthorised copy of their work, even if the third party is not selling it or using it commercially. For example, in the case of Mr Thomas’ work, he notionally would have had the right to pursue a person with a tattoo of the Aboriginal flag, as this would have been an unauthorised reproduction of his work.

Exclusive licenses

A copyright owner has the right to grant licences to other parties to make copies of their work or refuse its use altogether. In 2018, Mr Thomas’ artistic work was licensed to WAM Clothing Pty Ltd (WAM), and they secured the exclusive, licence for the use of the Aboriginal flag on clothing. In exchange, Mr Thomas was paid royalties each time the flag was licensed from WAM. 

This exclusive license raised a number of issues for those wanting to use the flag. One such example, is the controversy that arose in the Australian Football League (AFL) where in spite of demand, the AFL refused to pay WAM for use of the Aboriginal flag. As a result, it was announced that the AFL would no longer feature the Aboriginal flag in their annual round dedicated to the recognition of Indigenous players and culture, and the flag was removed from the centre circle of AFL ovals, goal umpire signals and the clothing of the players.

Overcoming copyright protection

Options for overcoming copyright protection are limited and in the case of copyright in the Aboriginal flag, the following options were available:

  • waiting for the copyright protection to lapse: In Australia, copyright in published works generally lasts for the life of the author, plus 70 years. Mr Thomas’ copyright interest would have lasted for 70 years after his death and could have been claimed by his heirs or anyone else to whom he might have chosen to assign it.

  • seeking permission from the copyright owner: Assuming Mr Thomas could have terminated his agreement with WAM, then he could grant permission to the public to use the flag; or

  • the Australian Government buying the copyright: The Australian Government was able to negotiate with Mr Thomas to buy the copyright ownership over the work.

Ownership now vests in the Commonwealth

On 25 January 2022, it was announced that the Australian Government completed negotiations with Mr Thomas and copyright in the Aboriginal Flag had been transferred to the Commonwealth. This means that the Aboriginal flag is freely available for public use and can be used on apparel such as sporting jerseys and shirts, included on websites, artworks, used digitally and in any other medium without payment, fear or permission.

Exceptions to use

Limitations exist when flags and other Australian cultural symbols are used for commercial purposes. These include ensuring:

  • use of the flag is in a dignified manner and only reproduced completely and accurately;
  • the flag is not covered with other words, illustrations or objects;
  • all symbolic parts of the flag are identifiable;
  • businesses seeking to import products featuring the Australian flag will need permission from the Department of the Prime Minister and Cabinet. Where a trade mark or design features the flag, registration will be subject to compliance with the published guidelines for commercial use of the flag; and 
  • the flags themselves cannot be registered as a trade mark subject to section 39 of the Trade Marks Act 1995 (Cth), which restricts the registration of trade marks containing or consisting of a representation of a Commonwealth flag.

Torres Strait Islander flag

Whilst the Australian and Aboriginal flags are now owned by the Commonwealth, the Torres Strait Islander Flag is owned by the Torres Strait Island Regional Council and their fifteen communities. Permission is not required to fly the Torres Strait Islander flag, however, permission is required to reproduce it and the following guidelines must be followed:

  • where appropriate, recognition is given to the original designer, the late Mr Bernard Namok;
  • the original colours according to the Pantone Colour Matching System are used; and 
  • permission must be received in writing from the Torres Strait Island Regional Council, prior to its use.

The Commonwealth’s purchase of copyright in the Aboriginal flag comes as a timely reminder that businesses should be mindful of intellectual property rights surrounding flags and cultural symbols. Not all national flags and symbols are freely available for commercial use and businesses wanting to use a national flag or symbol should make enquiries to determine what permissions are required and, where applicable, obtain appropriate licences from the copyright owners.

For more information about copyright, or to discuss your copyright interests, please contact our Intellectual Property and Technology team.

Key Contacts
Hayden Delaney
Partner
Hayden is a Partner and he leads HopgoodGanim’s Intellectual Property, Technology and Cyber Security team. Hayden has extensive experience in the information, communications and technology sector, and intellectual property law.

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