Australia Pays $20 Million To Buy The Copyright Of Aboriginal Flag, But It's Still Not Public Domain

from the just-ridiculous dept

Over a decade ago, we wrote about how Google had to edit out the Australian Aboriginal flag from a logo because of copyright concerns. An 11-year-old girl had won a contest to design a Google logo for Australia Day, and her logo included a simple drawing of the popular Aboriginal flag. Harold Thomas created a (fairly simple) flag design "as a symbol of unity and national identity" for the Aboriginal people in Australia. The flag became quite popular... and then Thomas basically became a copyright landlord, demanding payment for pretty much any usage.

In 2019, Thomas did a big licensing deal with a clothing company and proceeded to send out a bunch of cease-and-desist letters to others. It got so bad that the Australian Senate sought to have the government figure out a way to make sure the public could use the flag.

Apparently it took over two years, but the "deal" has been worked out -- and it involves the Australian government paying over $20 million to basically buy out the copyright and the former licensing deals, but that still doesn't mean the flag is truly in the public domain:

Mr Thomas will retain moral rights over the flag, but has agreed to give up copyright in return for all future royalties the Commonwealth receives from commercial flag sales to be put towards the ongoing work of NAIDOC.

A commercial company will keep its exclusive licence to be able to manufacture Aboriginal flags for commercial use, but the government said the company would not stop people from making their own flags for personal use.

So, given that he retains the moral rights, that suggests he will still have the power to stop anyone from using the flag in a way that he, personally, disapproves of. And the fact that there's still a license for commercial use, means that the government is still effectively enforcing the copyright.

So, in the end this was $20 million of taxpayer money... to basically pledge not to go after people for personal use.

Prime Minister Scott Morrison said the flag would 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".

"All Australians can now put the Aboriginal Flag on apparel such as sports jerseys and shirts, it can be painted on sports grounds, included on websites, in paintings and other artworks, used digitally and in any other medium without having to ask for permission or pay a fee," Mr Morrison said.

"We’ve freed the Aboriginal Flag for Australians."

With a whole bunch of caveats. If it's used in a manner that someone disapproves of, you better believe that it won't be seen as "free" for use. Hell, even the Google example from a decade ago probably wouldn't work, because I would bet the Australian government would argue that was a "commercial" use.

Mr Thomas said the flag's design was his dreaming story.

"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," he said.

"It draws from the history of our ancestors, our land, and our identity and will honour these well into the future."

Seems just slightly ironic for a landlord who claimed ownership of a concept and then locked people out would call that a representative sample of "the timeless history of our land."

Filed Under: aboriginal flag, australia, copyright, harold thomas, licensing, moral rights, public domain

Australian Aboriginal Flag Mess Is Getting Worse -- All Thanks To Copyright

from the don't-give-them-ideas dept

One of the longer-running sagas here on Techdirt concerns the disgraceful situation regarding the flag of Australia's Aboriginal peoples. Mike first wrote about this in 2010, and again in June of this year. The problem is that what is now widely regarded as the flag of Australia's First Nations was designed fairly recently by a private individual, not a group representing those peoples, or some official Australian government body. The designer, Harold Thomas, signed a licensing deal with a clothing company, Wam Clothing, which imposes hefty fees for the use of the design, even on non-profit health organizations giving away items that bear the flag:

In August, Wam Clothing charged the Indigenous Wellbeing Centre in Bundaberg AU$2,200 [about $1500] to use the flag on T-shirts it had given to patients who came into the clinic for a preventive health check.

According to an article in the Guardian, the licensing agreement between Wam Clothing and Harold Thomas specified that the design may be used by Aboriginal people for non-profit purposes. However:

Wam Clothing has said the terms of any licence agreements are confidential and legally privileged and only for the benefit of the parties to that agreement. They said the documents seen by Guardian Australia may have been fraudulently created.

Wam Clothing claims that it is the exclusive worldwide licensee for the use of the Aboriginal flag not just on clothing, but also on digital media. To prove the point:

In mid-August, the company issued a "cease and desist" notice to the creator of a Facebook discussion page called "New Aboriginal flag or flags discussion" because its "use of the digital image of the Aboriginal flag on social media platforms are [sic] being used in a negative light".

Copyright and secret deals have made the situation so ridiculous that in June 2019 the Australian Senate passed a motion calling on the national government to do all it could to "ensure that all First Nations peoples and communities can use the flag whenever they want without cost or the need for consent". More recently, the Australian MP Linda Burney called for the government there to sort things out:

"This situation is untenable," Burney said. "It’s unthinkable that the use of the Aboriginal flag is now governed by a secret agreement at the discretion of a for-profit company.

"It is a discredit to the flag's history and the strength it represents."

This is not just about copyright, or the rights of Australia's Aboriginal peoples. For Burney, the issue is personal:

"Like so many proud Aboriginal people, I've got a tattoo of the flag. What are they going to do? Try and cut it out of me?"

Probably best not to give them ideas, Linda…

Follow me @glynmoody on Twitter, Diaspora, or Mastodon.

Filed Under: aborigine, australia, copyright, flag, flag copyright, harold thomas
Companies: wam clothing

The Copyright Fights Over The Australian Aborigine Flag Continue To Demonstrate Copyright Insanity

from the not-how-it's-supposed-to-work dept

It's been nearly a decade since we last wrote about the Australian aborigine flag and the insane copyright issues surrounding it. That time, back in 2010, it involved the copyright holder of the flag forcing Google to edit the flag out of one of its famous Google doodles, where it had originally been included as part of an Australia Day celebration. The problem, as you might have guessed, is that the flag was designed in the early 1970s "as a symbol of unity and national identity" by Harold Thomas. Because it was the creation of a private individual, and not a government, Thomas claims to hold a copyright on the image. He didn't do much with that copyright for decades, while the flag became an established symbol for indigenous Australians. Then, suddenly, he discovered he held the copyright and started making use of it.

Apparently, that's ramped up even more in the last few months after Thomas did a licensing deal with a clothing company, followed by the traditional "sending of the cease-and-desist letters."

In October 2018, Thomas granted WAM Clothing worldwide exclusive rights to use the flag on clothing. Late last week, it issued a series of “cease and desist” notices to several companies, including the AFL, which uses the flag on jerseys for the Indigenous round, and an Aboriginal social enterprise which puts the profits of its clothing sales back into Aboriginal community health programs.

A spokesperson for WAM Clothing said it had been “actively inviting any organisations, manufacturers and sellers who wish to use the Aboriginal flag on clothing to contact us and discuss their options”.

“Until WAM Clothing took on the licence Harold was not receiving recognition from the majority of parties, both here and overseas, who were producing a huge amount of items of clothing bearing the Aboriginal flag,” the spokesperson said.

Of course, some might argue that if you design a "flag" and declare that you did so "as a symbol of unity and national identity," and then allow that flag image to be used for decades in order to establish it as identifying indigenous Australians it is (1) kind of an obnoxious move to then register a copyright, license it and start sending out legal threats and (2) so blatantly obviously against anything having to do with copyright law. Thomas did not design the flag because of the incentives of copyright law, as even he admits. The idea that he then gets to benefit from that law that had nothing to do with incentivizing the creation seems quite ludicrous.

Meanwhile, the mess has copyright lawyers in Australia suggesting that the government forcibly buy out Thomas' copyright:

Former CEO of the Australian Copyright Council Fiona Phillips says the legal status of the Aboriginal flag is a “unique situation” that requires a public policy solution.

[....]

“The Aboriginal flag is not just an artistic work, it’s a national symbol and is particularly important to Indigenous Australians,” said Phillips, who has also worked at the Australian Competition and Consumer Commission and as a government adviser on copyright law.

“The government could seek to compulsorily acquire copyright from Mr Thomas on public policy grounds. They could buy him out for the rights.”

Yes, the government could do that, and it would still be fairly crazy. It seems like a better idea is recognizing that if you push something out there as a symbol for all to use, and then decades later come back with copyright demands, the copyright claims should be laughed at, rather than made real. Tragically, Australia went in the other direction, leading to the present mess.

Filed Under: aborigine, australia, copyright, flag, harold thomas, licensing, national symbol