The assignment of the copyright in the Aboriginal flag

14 June 2022

Earlier this year the Australian Government acquired the copyright in the Aboriginal Flag, announcing that the Aboriginal Flag was now freely available for public use for all Australians.

How did we get here?

In 1997 the Federal Court of Australia held that the Aboriginal Flag was protected by copyright as it amounted to artistic work. This granted the creator, Harold Thomas, the exclusive right to exploit the copyright subsisting in the Aboriginal Flag. Over time, he had granted exclusive licences to a number of companies for the use and reproduction of the flag.

Controversy was sparked when some of the exclusive licensees heavy-handedly exercised their rights against a number of organisations, including Indigenous organisations, seeking to use the Aboriginal Flag. This prompted the ‘Free the Flag’ campaign in 2019, followed by the Senate Inquiry in 2020.

What has changed?

On 25 January 2022,the Australian Government made the announcement about the Aboriginal Flag being available for public use following the assignment of copyright from Mr Thomas for approximately $20 million. This means that it can be used for commercial and non-commercial purposes without the need to pay any fees.

The Australian Government declared that:

All Australians can now put the Aboriginal Flag on apparel such as sports jerseys and shirts, it can be painted on sports grounds, included on websites, in paintings and other artworks, used digitally and in any other medium without having to ask for permission or pay a fee.

As part of the settlement, all existing commercial licenses held by companies were terminated, except for agreements with Carroll & Richardson Flagworld (see below).

What now?

Despite the assignment, there remain some caveats on the free use of the Aboriginal Flag which are important to bear in mind.

Mr Thomas’ Retention of Moral Rights

The press release acknowledges that Mr Thomas will retain his moral rights over the Aboriginal Flag. This protects the following rights:

  • Right of Attribution – Mr Thomas is entitled to have the work attributed to him and a failure to credit him when using the flag may amount to infringement.
  • Right Against False Attribution – by the same token, a third party must not be attributed as the creator of the Aboriginal Flag.
  • Right of Integrity of Authorship – this protects Mr Thomas from having the Aboriginal Flag subjected to derogatory treatment, including by materially distorting or altering the flag, or destroying or mutilating it.

Commercial Production

As part of the assignment, the Australian Government has entered into an ongoing arrangement with Carroll & Richardson Flagworld to remain the ‘exclusive licensed manufacturer and provider of Aboriginal Flags and bunting’.

While this means that nobody can commercially produce or supply the Aboriginal Flag, it does not preclude individuals from making their own flag for personal use.

Respectful Use

Going forward, the Aboriginal Flag will be managed in a similar way as the Australian National Flag, whereby it is free to use, but must be presented in a respectful and dignified way. We expect that the Government will provide further guidelines for the use of the Aboriginal Flag.

If you would like any further information on copyright, please contact a member of our IP team.

This article was written by Jennifer Huby, Partner and Tiana Totaro, Graduate-at-Law.

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