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Free the Flag?

21 August 2020


The AFL and Indigenous community are outraged over WAM Clothing Pty Ltd owning the exclusive use of the Aboriginal flag design. There are widespread calls for the AFL and the Australian Government to protest a copyright ban that will see the Aboriginal flag missing from the AFL field during Sir Doug Nicholls Indigenous Round.

The Aboriginal flag has been widely used on the country's sporting fields, carried by Cathy Freeman in iconic moments at the 1994 Commonwealth Games and 2000 Sydney Olympics.

A Federal Court ruling in 1997 recognised the ownership claim of the Aboriginal Flag by designer Harold Thomas. The artist has licensing agreements with just three companies; one to reproduce flags, and the others to reproduce the image on objects and clothing.

The non-Indigenous clothing apparel company WAM Clothing purchased the copyright licence to the Aboriginal Flag design in 2018 and even charges fees for its use. The company's website explicitly states the author of the Aboriginal Flag designer Harold Thomas is paid royalties for every piece of clothing they sell.

The company was to charge the AFL league for the use of the flag in the upcoming games, but the league has decided to simply not use the flag in this week's games.

This is not the first conflict over the copyright of the Aboriginal flag, after the same company threatened legal action against several organisations for its use. Last year the company threatened legal action against the AFL and NRL for using the flag on their respective Indigenous Round jerseys.

A Victorian-based health organisation, Spark Health, was issued with a cease and desist notice after producing merchandise with the flag on it. The company was given three business days to stop selling their products.

WAM Clothing said it would work with any organisation and provide them with the option to continue manufacturing their own clothing ranges bearing the flag. The company has obligations under its Licence Agreement to enforce Harold Thomas' Copyright, which includes issuing cease and desist notices.

The Melbourne-based, Indigenous owned social enterprise, Clothing the Gap, was also issued with a cease and desist letter last year for using the flag. As a result, the company has started a campaign called Free the Flag.

Former head of the Australian Council Fiona Phillips said there could be an argument for the Government or another agency buying back the copyright licence from Mr Thomas. It is evident that there needs to be a way that Harold Thomas can be remunerated fairly but where other people can also have access to the flag.

We would be interested to hear your thoughts in relation to the issue of Copyright ownership of the Aboriginal flag and please feel free to leave a comment below.

Ellen Baker