It was announced this week that the Copyright in the Aboriginal flag has been transferred to the Commonwealth, following a long period of negotiations. Great result, curious timing. It’s presently unclear when the deal was done, but we have no doubt the timing of the announcement on 25 January was not a coincidence.

The designer of the flag, Harold Thomas, and various licensees, have been paid $20.05 million to secure copyright and extinguish the licences and so that the flag is now free for all to use.

The Aboriginal flag was designed by Thomas ahead of the NAIDOC March in 1971, as a symbol of the Aboriginal land rights movement. In 1995 the flag was recognised as a national flag of Australia and, in 1997, the Federal Court held that Thomas was the author and owner of the copyright in the Aboriginal flag.

Mr Thomas will retain his moral rights over the flag, however, he has agreed to give up copyright in return for all future royalties the Commonwealth receives from commercial flag sales to be put towards the ongoing work of NAIDOC. In addition to this, the Australian government has agreed to establish an annual for Indigenous students and to create an online history and education portal for the flag.

What happened?

Following the Federal Court decision in 1997, it was held that Thomas was the rightful owner and copyright in the Aboriginal flag since it’s creation.

In 1998, Thomas entered into a world-wide exclusive agreement with Flags 2000 Pty Ltd, known today as Carroll & Richardson Flagworld. Following this, in 2018, Thomas granted the exclusive worldwide copyright licence to produce the Aboriginal flag on clothing to WAM Clothing Pty Ltd, a non-Indigenous company. In short, use of the flag was, until this week, largely controlled by Flagworld, WAM and Thomas.

Following growing pressure, including threatened litigation against the AFL, and the establishment of the Select Committee on the Aboriginal Flag, an agreement was reached with Thomas and those he had issued exclusive licences to.

What now?

As part of the deal, Flagworld will keep its exclusive licence to be able to manufacture Aboriginal flags for commercial use, however the government has confirmed that Flagworld would not stop people from making their own flags for personal use.

Harold Thomas retains his moral rights in the flag, which means that he should be attributed where it is used and is protected from having his work subjected to derogatory treatment.

The Government has confirmed that all future royalties the Commonwealth receives from Flagworld’s sale of the flag will be put towards the ongoing work of NAIDOC.

Scott Morrison does love a January announcement. In January 2021 the second line of the Australian National Anthem was changed from ‘For we are young and free’ to ‘For we are one and free’ to ensure, as Scott Morrison put it, “great unity is reflected more fully in our national anthem.” Timing criticism aside, the outcome of the negotiations is a positive one with the flag now available for all to use.