The Aboriginal Flag may have been freed, but certain restrictions on use still apply

By Joel Barrett
Intellectual Property Patents & Trade Marks

Important limitations to keep in mind 4 min read

The Australian Government recently acquired the copyright in the Aboriginal Flag and has announced that it is 'freely available for public use'. However, it is not in fact a free-for-all, and there are some important limitations to bear in mind.

Key takeaways

  • Until recently, most uses of the Aboriginal Flag would have required permission from the copyright owner, Harold Thomas, or his exclusive licensees. Such permission may have been declined or conditional.
  • In a press release on 25 January 2022, the Australian Government announced that it had acquired the copyright from Mr Thomas, thereby 'securing the free use of the Aboriginal Flag' for all Australians for both commercial and non-commercial purposes, without needing to obtain permission or pay any fees or royalties.
  • However, that broad licence is not completely unrestricted: users cannot commercially produce or supply Aboriginal Flags or bunting, they must continue to respect Mr Thomas' moral rights, and they will also need to comply with any guidelines, protocols or other rules that may be imposed by the government.

Who in your organisation needs to know about this?

Anybody involved in decision-making about the use of the Aboriginal Flag, including senior executives, in-house counsel and marketing teams.

A brief history of the Aboriginal Flag

Luritja man Harold Thomas designed the Aboriginal Flag in 1970, and it has been recognised under the Flags Act 1953 (Cth) since 1995. In a 1997 judgment, the Federal Court of Australia declared that copyright subsisted in the Aboriginal Flag as an artistic work, and that Mr Thomas was the owner of that copyright. This confirmed that Mr Thomas had the exclusive rights to reproduce the Aboriginal Flag in a material form, make it available online and electronically transmit it to the public, and to authorise others to do so.

Mr Thomas granted exclusive licences to WAM Clothing and Carroll & Richardson-Flagworld to exercise those rights. Those companies were vigilant in enforcing their rights, including against the indigenous-owned business Clothing the Gaps, which launched the 'Free the Flag' campaign in 2019 seeking to lift restrictions on use of the Aboriginal Flag.

New copyright owner, new freedoms

In a press release on 25 January 2022 entitled 'Free Use of Aboriginal Flag Secured for All Australians', the Australian Government announced that it had acquired the copyright in the Aboriginal Flag from Mr Thomas. In what is essentially a licence to the Australian public at large, the press release states that the Aboriginal Flag is now 'in public hands' and 'freely available for public use' without users needing to obtain permission or pay fees or royalties.

The press release contains some examples of commercial and non-commercial uses that are now permitted:

  • Printing the Aboriginal Flag on apparel such as shirts and sports jerseys.
  • Painting the Aboriginal Flag on sports grounds.
  • Posting the Aboriginal Flag on websites.
  • Incorporating the Aboriginal Flag into paintings and other artworks.
  • Making an Aboriginal Flag for personal use.

Flagging a few restrictions

While the press release states that 'all Australians can freely display and use the flag', there are some key exceptions to that general statement.

Commercial production and supply of Aboriginal Flags and bunting

Under new arrangements with the Government, Carroll & Richardson-Flagworld 'will remain the exclusive licensed manufacturer and provider of Aboriginal Flags and bunting'. The details of these arrangements, including the exact scope of the exclusive rights enjoyed by Carroll & Richardson-Flagworld, are not publicly available. However, this likely means that nobody else can commercially produce or supply Aboriginal Flags or bunting.

Mr Thomas' moral rights

Although the government now owns the copyright in the Aboriginal Flag, Mr Thomas retains his moral rights as its creator. These are the rights to be attributed as the artist of the Aboriginal Flag, the right not to have somebody else falsely attributed as the artist, and the right not to have the Aboriginal Flag subjected to treatment that is prejudicial to Mr Thomas' honour or reputation.

It is unclear whether and to what extent Mr Thomas will pursue users for infringement of his moral rights, or what he (or the courts) would consider to be treatment that is prejudicial to his honour or reputation. Moral rights infringements might include, for example:

  • Using the Aboriginal Flag without crediting Mr Thomas as the artist.
  • Materially altering or distorting the Aboriginal Flag, such as by changing its colours (which have particular symbolic meaning) or dimensions. In this regard, it's worth noting the following quote from Mr Thomas about his assignment of copyright to the government: 'I hope that this arrangement provides comfort to all Aboriginal people and Australians to use the Flag, unaltered, proudly and without restriction' [Emphasis added].
  • Destroying or mutilating the Aboriginal Flag.
  • Exhibiting or otherwise using the Aboriginal Flag in derogatory, offensive or controversial contexts. For example, in anti-indigenous materials, or in advertising for particular products or political parties with whom Mr Thomas does not wish to be associated.
Current and future guidelines, protocols, etc

The press release states: '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.' It's unclear whether the government intends to publish a separate set of guidelines for use of the Aboriginal Flag, which may be similar to the 'Commercial Use of the Australian National Flag' webpage of the Department of the Prime Minister and Cabinet website (the DPMC Website). Rules for the Australian National Flag currently include the following:

  • The Australian National Flag should be used in a dignified manner and reproduced completely and accurately.
  • The image of the Australian National Flag should not be covered with other words, illustrations or objects.
  • All symbolic parts of the Australian National Flag should be identifiable, such as the Union Jack, the Southern Cross and the Federation Star.
  • Any items bearing images of the Australian National Flag, or closely resembling the Australian National Flag, are 'restricted imports' under the Customers (Prohibited Imports) Regulations 1956 (Cth), and are therefore subject to special importation protocols.

The 'Australian Flags' webpage of the DPMC Website currently contains only one high level guideline in relation to use of the Aboriginal Flag: 'The flag should be represented respectfully and reproduced accurately.'

The press release states that copyright in the Aboriginal Flag now 'belongs to everyone, and no one can take it away'. However, users should still keep an eye out for any further, more specific restrictions that this or any future government may impose, whether by way of legislation, guidelines on the DPMC website, or otherwise.

Actions you can take now

If you are considering using the Aboriginal Flag in your marketing and advertising, or otherwise as part of your business, keep the above restrictions in mind. Contact us if you need legal advice on any current or proposed uses.