The Copyright Fights Over The Australian Aborigine Flag Continue To Demonstrate Copyright Insanity

from the not-how-it's-supposed-to-work dept

It's been nearly a decade since we last wrote about the Australian aborigine flag and the insane copyright issues surrounding it. That time, back in 2010, it involved the copyright holder of the flag forcing Google to edit the flag out of one of its famous Google doodles, where it had originally been included as part of an Australia Day celebration. The problem, as you might have guessed, is that the flag was designed in the early 1970s "as a symbol of unity and national identity" by Harold Thomas. Because it was the creation of a private individual, and not a government, Thomas claims to hold a copyright on the image. He didn't do much with that copyright for decades, while the flag became an established symbol for indigenous Australians. Then, suddenly, he discovered he held the copyright and started making use of it.

Apparently, that's ramped up even more in the last few months after Thomas did a licensing deal with a clothing company, followed by the traditional "sending of the cease-and-desist letters."

In October 2018, Thomas granted WAM Clothing worldwide exclusive rights to use the flag on clothing. Late last week, it issued a series of “cease and desist” notices to several companies, including the AFL, which uses the flag on jerseys for the Indigenous round, and an Aboriginal social enterprise which puts the profits of its clothing sales back into Aboriginal community health programs.

A spokesperson for WAM Clothing said it had been “actively inviting any organisations, manufacturers and sellers who wish to use the Aboriginal flag on clothing to contact us and discuss their options”.

“Until WAM Clothing took on the licence Harold was not receiving recognition from the majority of parties, both here and overseas, who were producing a huge amount of items of clothing bearing the Aboriginal flag,” the spokesperson said.

Of course, some might argue that if you design a "flag" and declare that you did so "as a symbol of unity and national identity," and then allow that flag image to be used for decades in order to establish it as identifying indigenous Australians it is (1) kind of an obnoxious move to then register a copyright, license it and start sending out legal threats and (2) so blatantly obviously against anything having to do with copyright law. Thomas did not design the flag because of the incentives of copyright law, as even he admits. The idea that he then gets to benefit from that law that had nothing to do with incentivizing the creation seems quite ludicrous.

Meanwhile, the mess has copyright lawyers in Australia suggesting that the government forcibly buy out Thomas' copyright:

Former CEO of the Australian Copyright Council Fiona Phillips says the legal status of the Aboriginal flag is a “unique situation” that requires a public policy solution.


“The Aboriginal flag is not just an artistic work, it’s a national symbol and is particularly important to Indigenous Australians,” said Phillips, who has also worked at the Australian Competition and Consumer Commission and as a government adviser on copyright law.

“The government could seek to compulsorily acquire copyright from Mr Thomas on public policy grounds. They could buy him out for the rights.”

Yes, the government could do that, and it would still be fairly crazy. It seems like a better idea is recognizing that if you push something out there as a symbol for all to use, and then decades later come back with copyright demands, the copyright claims should be laughed at, rather than made real. Tragically, Australia went in the other direction, leading to the present mess.

Filed Under: aborigine, australia, copyright, flag, harold thomas, licensing, national symbol

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  1. icon
    G Thompson (profile), 22 Jun 2019 @ 5:46am

    Oh dear.... where to begin

    Firstly, Mr Thomas did NOT register it after the fact, copyright in Australia like everywhere else other than the USA does not require registration and becomes registered at moment of creation.

    The artist in question created it for a public competition in the 70's with the Government of the day acknowledging that the design would be owned by the artist.

    The Artist himself is an Australian Aboriginal and has been fighting for his right to have the design (It is NOT a National Flag whatsoever and never has been under the Flag Act so please stop calling it one) used as he wants it used.

    It has been used by major corporate organisations to make themselves look good in teh eyes of the Aboriginal culture here and most actual Aborigines (other than those who have another agenda) do not care for the flag anyway since it is NOT a cultural icon and never would be under there culture.

    In the 2000's after a long and protracted legal fight the High Court acknowledged that it was Thomas's design and that he owned the copyright on it and had since creation - something that was common knowledge but corporations doiidn't want. Since then he has been fighting for his rights to use the design in the ways that he sees fit - which as we all know is the actual purpose of copyright.

    Recently he went into exclusive licence with an Australian clothing manufacturer who have been very active with requesting and trying to mediate (not bully) all the corporate organisations who have been using this design for there own purposes. The AFL is a mega million dollar sporting corporation not unlike similar American Sporting Organisations in GridIron. They and others refused point blank to pay a cent . Therefore cease & desist was sent.

    There is nothing ontoward about any of this, and as he himself is an Aboriginal Artist who is not very well off at all why people are going on about something that is the very basis of what copyright was meant to do is worrying.

    remember.. This is NOT a national icon.. never has been (since the govt has always known it was a private design) and the Govt can not under our Constitution acquire it whatsoever.. Even if they did it would be a political shit storm since it would be the Australian Govt compulsorily acquiring property of an Aborigine which is so similar to what EXACTLY occured 200yrs ago it's not funny!

    When you have KNOWINGLY breached copyright for commercial purposes for decades and then cry foul for 'cultural reasons' when its not even your culture.. there's a fucking problem. Though I see the PR Spin has made its way even to Techdirt

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