By Clint Fillipou, Principal / Managing Director Melbourne | 

22 April 2022

You may have heard recently that a longstanding and bizarre situation relating to one of Australia’s most important cultural icons, the Aboriginal flag, was finally resolved. What happened, and what does it mean for advertisers and brands moving forward? Can we use the Aboriginal and/or the Australian national flags in commercial campaigns, and if so, what are the rules?

Harold Thomas’ copyright and the history of the Aboriginal flag

Until recently, you would be forgiven for having assumed that all rights (including, you would think, all copyrights) in the Aboriginal flag had always belonged to the population of Australia, or perhaps to indigenous elders, First Nations communities, or maybe an Aboriginal charity.  After all, many of us that grew up worshipping indigenous sporting heroes like Cathy Freeman, Adam Goodes, Evonne Goolagong-Cawley, and more recently Patty Mills, have come to know the Aboriginal flag as a symbol of national pride.  However, while the flag had been a proclaimed flag of Australia under our Flags Act 1953 (Cth), copyright ownership of the artistic work in the Aboriginal flag remained with its creator, Harold Thomas, a Luritja man who created the work in 1970.

As the copyright owner, Mr Thomas had the right to licence the flag’s use, which he has done numerous times over the years. Most recently, in 2017, he made clear he had entered exclusive arrangements with a clothing brand (WAM Clothing) and a flag manufacturer (Carroll & Richardson-Flagworld) to produce products bearing the works. You may have seen recent press regarding WAM Clothing making threats of legal action against third parties who used the flag in certain instances that had long been thought ‘public domain’ or acceptable use of an Australian symbol. A prominent example was WAM Clothing’s claims against the Australian Football League who use the symbol in various contexts to promote indigenous players, such as by including the flag on playing guernseys in the league’s ‘indigenous round’ each year.  Interestingly, WAM Clothing was a non-indigenous entity, which only fueled the controversy.

The commonsense solution

While the legality of the licenses was not questioned, the indigenous community and the broader Australian community were up in arms about the practical limitations the licences imposed on the use of what many of us considered a sacred Australian icon that celebrated indigenous culture. Also that this seemed like a case of commercial interests outweighing Australian (and most importantly, indigenous Australian) interests.  It was jarring that a brand could claim a monopoly over such an icon, and the Australian government agreed, finally interceding in the matter and procuring the copyright from Mr Thomas, in January 2022. The government also simultaneously rearranged the relevant licences with the third party licensees to ensure that the Aboriginal flag was finally brought under the same ownership and usage structure as the Australian national flag, so that instances such as the AFL example (and others) would not happen again.    As a sweetener, the government arranged an exclusive licence with Carroll & Richardson-Flagworld, who retain certain exclusive rights to manufacture and provide Aboriginal flags and bunting, on terms that are otherwise confidential.

Rules regarding usage of flags

The Australian national flag, which has been flown since 1901 when it was selected as the winning design of a competition, is owned by the Australian people and protected under the Flags Act, and its rights are controlled as detailed below.

Of course, just because ownership of both flags is now in public hands, this does not mean they are in the public domain for use in whatever manner an individual (or a brand) may decide suits them. The Prime Minister in announcing the $20m copyright deal for the Aboriginal flag, said “We’ve freed the Aboriginal flag for all Australians”. He also noted that “the Aboriginal Flag will now be managed in a similar manner to the Australian National Flag, where its use is free, but must be presented in a respectful and dignified way”.

The longstanding rules with respect to using the Australian national flag commercially, as policed by the Department of Prime Minister and Cabinet (DPMC), remain in place.  These same rules shall now apply to the usage of the Aboriginal flag. No fee or licence is required to use the flag, as long as these rules are followed.

Those rules relating to the Australian national flag, which now apply to both the Australian national flag and the Aboriginal flag, are as follows:

1. The flag must always be used in a dignified manner and reproduced completely and accurately;
2. The flag should not be defaced by overprinting with words or illustration;
3. The flag should not be covered by other objects in displays; and
4. All symbolic parts of the flag should be identifiable.

In addition, when importing any products bearing an image of a flag into Australia, special permission must be obtained from the DPMC.

Finally, Mr Thomas’ moral rights (which are a subset of rights linked to copyright, which remain with the author) were retained as part of the copyright deal. So, his moral rights must not be infringed, which would also prevent derogatory use of the Aboriginal flag. Moral rights also technically prevent the flag being reproduced without Mr Thomas being identified as the creator, and prevent anyone else being falsely attributed as the creator. It is not clear how strict Mr Thomas would be in relation to enforcing his moral rights, however he has made public statements including “I hope that this arrangement provides comfort to all Aboriginal people and Australians to use the Flag, unaltered, proudly and without restriction”. It is worth noting that the government’s requirements above and Mr Thomas’ moral rights are broadly consistent and would likely be enforced together. It is assumed, at least at this stage, that use of the Aboriginal flag respectfully and in line with the above will prevent Mr Thomas from making any form of moral rights claim.

To be clear, by way of example, if you were to develop a campaign for an alcohol brand around Australia Day, and had a still image depicting the Australian flag wrapped around the waist of a young man at a pool party holding a mojito, this would likely be unacceptable and trigger the DPMC to contact you with a cease and desist letter. Indeed, given the cultural sensitivity around Australia Day for indigenous Australians, such a usage in the above context of the Aboriginal flag would also be culturally insensitive and highly imprudent.  Similarly, if you run a campaign where the Aboriginal flag is shown obstructed by promotional wording or a price offer, you would be in breach of the rules.

If there are any additional rules or guidelines issued in relation to the Aboriginal flag over and above those detailed above, we will be sure to update you in due course.

Contact us

If you would like further information on the usage of Australia’s flags in campaigns, please contact us as per the below. We can provide tailored legal and practical advice to assist you with reviewing or clearing advertising material and campaigns, or with respect to any copyright or other intellectual property problems you face.