Australian government buys copyright to Aboriginal flag in $20m deal

The Aboriginal flag can now be reproduced on apparel and merchandise after the federal government secured its copyright to resolve a complicated legal dispute over the use of the emblem.

The Morrison government has paid more than $20m to obtain the copyright to the flag, plus terminate commercial licenses owned by companies which had limited the reproduction of the symbol.

“In reaching this agreement to resolve the copyright issues, all Australians can freely display and use the flag to celebrate Indigenous culture,” Ken Wyatt, the federal minister for Indigenous Australians, said.

“Now that the commonwealth holds the copyright, it belongs to everyone, and no one can take it away.”

The Aboriginal flag, designed by Luritja artist Harold Thomas, was first flown at a land rights rally in Adelaide in July 1971. It has been an important symbol for Indigenous Australians for decades, and is regularly flown alongside Australia’s national flag in official and ceremonial capacities.

But unlike the national flag, to which the commonwealth holds the rights, the Aboriginal flag’s copyright had been held by Thomas himself. In 2018, he gave exclusive rights to the flag’s use on apparel and media to WAM Clothing, which later issued infringement notices to professional sporting codes and Aboriginal nonprofit groups for reproducing the flag without permission.

Controversy over that situation led to the establishment of a parliamentary committee on the usage of the Aboriginal flag. The inquiry’s final report, released in October 2020, spoke of WAM Clothing’s “heavy-handed (yet entirely legal) approach to enforcing its rights”.

The report recommended against compulsorily acquiring the Aboriginal flag’s copyright. Committee chair and Labor senator Malarndirri McCarthy wrote in a foreword to the report that Thomas declined invitations to address the inquiry, citing “confidential negotiations under way with the commonwealth government”.

Wyatt’s office has spoken previously of its “quiet discussions” to deal with the “extremely complicated” issues around the Aboriginal flag.

On Monday evening, prime minister Scott Morrison announced the government had completed negotiations with Thomas. The deal involved the flag’s copyright being transferred to the commonwealth, and payments being made to private businesses – including WAM Clothing – which had licensed the flag’s use.

The federal government said the agreement also includes a payment to Thomas to secure the copyright, the establishment of an annual $100,000 scholarship in Thomas’s name for Indigenous students, and the commonwealth donating royalties from sales of the Aboriginal flag to the National Aborigines and Islanders Day Observance Committee (Naidoc).

Morrison’s office said Thomas would use $2m to establish a not-for-profit organisation to “make periodic disbursements aligned with interests of Aboriginal Australians and the flag”. The federal government will also display a painting from Thomas, recognising the flag’s 50th anniversary and the copyright transfer, in a “prominent location”.

“Throughout the negotiations, we have sought to protect the integrity of the Aboriginal Flag, in line with Harold Thomas’ wishes,” Morrison said in a statement.

“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 prime minister said the flag could now be used on sports jerseys, shirts, websites, paintings, reproduced on sporting grounds and used “in any other medium without having to ask for permission or pay a fee”.

Wyatt called the flag “an enduring symbol close to the heart of Aboriginal people” and described the copyright agreement as “profoundly important”.

“Over the last 50 years we made Harold Thomas’ artwork our own – we marched under the Aboriginal flag, stood behind it, and flew it high as a point of pride,” he said.

In a statement to Guardian Australia, a spokesperson for Wyatt’s office confirmed the commonwealth had paid millions of dollars as part of the transfer.

“The total figure to extinguish the existing licences and secure the copyright is $20.05 million. This includes a payment to Mr Thomas for the copyright and payments to the licensees for termination of their licences,” the spokesperson said.

Guardian Australia understands that amount includes payments to WAM Clothing, as well as Carroll and Richardson Flagworld, which had been the “exclusive licensed manufacturer and provider of Aboriginal Flags and bunting”, Morrison’s office said. Flagworld will remain the exclusive manufacturer, but the company will not restrict individuals from making their own flags for personal use.

In a statement provided by Morrison’s office, Thomas said he hoped the copyright transfer “provides comfort to all Aboriginal people and Australians to use the flag”.

“The Aboriginal flag design is my dreaming, intertwined with my wife’s family and mine, our ancestral belonging. The land, and the landscape, is indelible in my makeup; it courses through my consciousness and subconsciousness,” he said.

“The flag represents the timeless history of our land and our people’s time on it. It is an introspection and appreciation of who we are. It draws from the history of our ancestors, our land, and our identity and will honour these well into the future.”

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