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14 June 2019Copyright

Copyright dispute over Aboriginal flag sparks debate

A dispute surrounding the copyright of the Australian Aboriginal flag has intensified after the exclusive rights-holder for the flag issued cease and desist notices to Aboriginal owned businesses which are using it on their products.

Speaking to WIPR, IP lawyer and former CEO of the Australian Copyright Council, Fiona Phillips, said the situation may require the Australian government to work with stakeholders to develop an appropriate solution.

The flag in dispute was designed by artist Harold Thomas in recognition of the Aboriginal people of Australia and as a symbol of their race, identity and land rights. Thomas, who is from the indigenous group of Luritja people, was granted copyright protection for it in 1997.

In October 2018, Thomas entered into an agreement with non-indigenous company WAM Clothing. WAM is the exclusive worldwide copyright licensee for clothing bearing the Aboriginal flag design.

Phillips said the case is unique “because normally a flag will be in the public domain or copyright will be owned by the government”.

She said that while the Aboriginal flag is an artistic work under copyright law, it is also an official Australian flag and has national significance, especially to indigenous Australians.

“In those circumstances, I query whether it is appropriate for an individual to have sole control over how the flag is reproduced,” she added.

Phillips said one option may be for the government to buy the copyright for the flag from Thomas.

Alternatively, it may need to develop protocols around the licensing and use of the flag, she said.

Phillips comments come shortly after WAM issued cease-and-desist notices to a number of businesses.

One Aboriginal business, Spark Health Australia, which operates an Aboriginal brand Clothing the Gap, received a cease-and-desist notice from WAM on June 6.

Clothing the Gap donates 100% of its profits from products to support Aboriginal health programmes across Victoria, a region of Australia.

In its notice, WAM requested that Clothing the Gap stop selling all products bearing the Aboriginal flag.

In a statement to WIPR, Spark Health said it was surprised to receive the notice as an Aboriginal owned and led business.

Laura Thompson, managing director of Spark Health, said: “The Aboriginal Flag represented the struggle and resistance movement, now it just feels like a struggle to use it.”

The company said that in the days since the notice, the Aboriginal community “has been overwhelmingly supportive” and has generated a worldwide discussion around who should be given ownership of the flag.

In response, the company has started a change.org petition ( www.change.org/pridenotprofit) with the aim to change the licensing agreements around the use of the flag. The petition currently has more than 34,000 signatories.

WAM reportedly also issued cease and desist notices to the Australian Football League and National Rugby League, which use the flag on players’ jerseys.

WIPR has contacted both parties for comment.

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15 October 2020   An Australian Senate committee has warned the country’s government against seizing the copyright for the Aboriginal flag, saying it would create a “dangerous precedent”.
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12 March 2021   An Aboriginal artists’ group in Australia has urged Indigenous artists to stop selling their copyright, arguing that they are being exploited by large corporations.
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25 January 2022   The Australian government has paid more than Aus $20m for the Aboriginal flag ending a copyright dispute that had prevented national sporting teams, communities and citizens from using the image.