Copyright in the flag has been subject to controversy, as to original and ongoing ownership of the copyright.
1997: copyright granted to Thomas In 1997, in the case of
Thomas v Brown and Tennant, the
Federal Court of Australia declared that Harold Thomas was the owner of copyright in the design of the Australian Aboriginal flag, and thus the flag has protection under
copyright law of Australia. Thomas had sought legal recognition of his ownership and compensation following the Federal Government's 1995 proclamation of the design, and his claim was contested by two others, George Brown and James Tennant. After winning copyright, Thomas awarded rights solely to Carroll & Richardson – Flagworld Pty Ltd and Birubi Art Pty Ltd for the manufacture and marketing of the flag and of products featuring the flag's image. In November 2018, Thomas granted WAM Clothing (which is co-owned by Birubi Art owner Ben Wooster) a licence for the use of the flag on clothing. In June 2019, it was reported that WAM Clothing had demanded that Aboriginal-owned businesses stop selling clothing that featured the flag. They also sent notices to the
NRL and
AFL about their use of the flag on
Indigenous round jerseys. In June 2020, after a prominent Aboriginal footballer began selling WAM-licensed teeshirts bearing the flag through his own website, Aboriginal former senator
Nova Peris, a leader of a "free the flag" campaign, wrote to the
Governor-General, requesting his support for divesting WAM of the copyright. After consultation with its Aboriginal and Torres Strait Islander Advisory Council, the AFL did not enter into a commercial agreement with WAM in 2020, in line with general Aboriginal sentiment on the issue. In August 2020,
Ken Wyatt,
Minister for Indigenous Australians, said that he would love to see the flag freely used across Australia, and former AFL player
Michael Long said its absence would have a negative effect on the players in the
Sir Doug Nicholls Indigenous Round. Wyatt encouraged spectators to bring flags to the games, beginning in
Darwin on 22 August 2020.
2022: copyright transfer to Commonwealth On 24 January 2022, the Commonwealth government announced, after more than three years of confidential negotiations, that Thomas had transferred the copyright in the flag to the Commonwealth. The federal government paid $20.05m to Thomas and licence holders (including WAM Clothing and Carroll and Richardson Flagworld) to extinguish existing licences and secure copyright. As part of the copyright transfer, Thomas retained
moral rights over the flag (which include the right to be identified as its creator). Following the copyright transfer, Carroll and Richardson Flagworld continued to be the exclusive manufacturer, although individuals may make copies for personal use. About the use of the flag, the government statement reads: Some Indigenous people are not happy to see the federal government have control of the flag, rather than an Indigenous organisation, and law professor Isabella Alexander said that some legal questions remained, for as long as details of the agreement were still commercial-in-confidence. Upon the release by the Australian government of the Assignment Deed following an
FOI application, David J. Brennan has identified a likelihood that the Australian copyright in the 1971 flag as an artistic work expired upon transfer to the Commonwealth. The flag's current legal status was debated in an
Australian Senate estimates committee in mid‑February 2022, when it was also revealed that the
Morrison government had paid $13.75m to Thomas to assume copyright, and also paid $6.3m to two non-Indigenous businesses which held licences to use the flag. These companies are WAM Clothing, which received $5.2m, and Wooster Holdings, which was paid $1.1m. Interests in both companies are held by
Gold Coast businessman Ben Wooster, former director of Birubi Art (which was fined $2.3m in 2018 for selling fake Aboriginal art). ==See also==