Moral And Legal Stoush Over Aboriginal Flag: 'A Question Of Control'

An ongoing legal dispute is raising ethical questions about ownership of the Aboriginal flag.

The red, yellow and black flag has long been a symbol of unity among Indigenous Australians, but last week, legal cease-and-desist letters were sent to a number of groups, demanding they stop using it without proper licensing agreements.

The flag was designed by Indigenous artist Harold Thomas in 1970, a reflection of the civil rights marches and a symbol for identity and justice. It was first flown a year later, and and in 1995 was accepted by the Commonwealth government as a 'Flag of Australia'.

cathy freeman aboriginal flag
Cathy Freeman waves the Aboriginal flag after winning the women's 200-metre sprint at the 1994 Olympics. Photo: AAP.

Permission is not required to fly the Aboriginal flag, but reproducing it is another issue entirely.

Thomas still owns the copyright, and last year sold the exclusive worldwide rights to use it on apparel to WAM Clothing -- a non-Aboriginal owned distribution company.

Thomas did not respond to requests for comment.

READ MORE: Indigenous Words To Feature On New 50 Cent Coin

Last week, several organisations received cease-and-desist letters, including Aboriginal-owned business Spark Health. The business has since made noise on social media, upset that it has been told to stop using the design on its goods.

"This is not a question of who owns copyright of the flag. This is a question of control," Spark Health's petition reads.

"Should WAM Clothing, a non-Indigenous business, hold the monopoly in a market to profit off Aboriginal people's identity and love for 'their' flag?"

aboriginal flat t-shirts
Protesters wear Aboriginal flag t-shirts during during a rally against the forced closure of Aboriginal Communities in Australia in 215. Photo: Getty.

More than 26,000 people have signed the petition. Spark Health is calling for "viable channels for new licensing agreements" to be created, but the case is complicated.

Technically speaking, the Indigenous flag is subject to the same copyright law as the Australian flag, copyright lawyer Nicholas Pullen told 10 daily. The difference here is that the Crown owns the Australian flag, and has effectively said anyone could use it, while the Aboriginal flag is not publicly owned.

"The Aboriginal flag is privately owned, and the person who owns that copyright has chosen to use it the same way any person with copyright can use it commercially," Pullen said.

harold thomas
Harold Thomas, the creator of the Aboriginal flag. Photo: Harold Thomas Art.

Both the NRL and the AFL are reportedly in negotiations with WAM Clothing after having used the flag on jerseys during their recent Indigenous tribute rounds. Spark Health will likely need to either licence the flag from WAM, or change the design of their shirts altogether.

"It needs to change to the point where the copyright isn't being infringed," Pullen said.

On Wednesday night, Spark Health founder Laura Thompson appeared on The Project wearing an Aboriginal flag t-shirt with a swirl in the middle, but it is unlikely to be enough of a change.

"I suggest that a swirl in the yellow dot is not substantial enough to prevent infringement," Pullen said.

Speaking to The Project, Thompson said the flag should be about pride, not profit.

laura thompson the project aboriginal flag
Spark Health founder Laura Thompson speaking to The Project.

"Maybe the government should buy the licensing agreement so we can all use it like we want to -- to express our culture and identity," she said.

She said she wrote to Thomas to licence the flag, but never heard back.

"The flag's always represented struggle and resistance, and it's something that all Aboriginal people have attached themselves to as a sign of unity and strength, and now it really feels like a struggle to be able to use it," she said.

In a further twist, The Guardian reports one of the owners of WAM Clothing, Ben Wooster, was previously associated with Birubu Art Pty Ltd, a company found last year to be selling fake Aboriginal Art.

According to the ACCC, Birubi Art sold over 18,000 boomerangs, bullroarers, didgeridoos and message stones over a two-year period. The products featured designed associated with Aboriginal art and included words such as "genuine" and "Aboriginal Art", but were made in Indonesia.

aboriginal flag
WAM Clothing owners Semele Moore (right) and Ben Wooster (left) with Harold Thomas in December 2019, announcing the copyright license. Photo: Instagram.

“It was unacceptable that Birubi sold Indonesian made products as having being hand painted by Australian Aboriginal persons when that was not the case,” ACCC Commissioner Sarah Court said at the time.

“The artwork, images and statements used by Birubi suggested a relationship between Australian Aboriginal people and the production of the products which did not exist.”

Birubi is now under administration.

WAM Clothing did not respond to 10 daily's request for comment, but provided a statement to The Project saying it was "pleased" Thomas was receiving his "rightful recognition and subsequent royalties".

It also said Spark Health has not taken up their invitation to "discuss the correspondence or options available."

Contact the author: