The ABC understands the NRL was sent a notice over its use of the flag on jerseys during Indigenous Round. (Supplied: NRL )
Australia’s major football codes have been drawn into a conflict over the copyright of the Aboriginal flag, after a non-Indigenous company secured exclusive clothing rights to the flag.
- In late 2018, a new non-Indigenous business secured the exclusive licence to reproduce the Aboriginal flag on clothing
- Since then, WAM Clothing has threatened legal action against several organisations
- A copyright expert says the Government could buy the licence to ensure community access to the flag
The Aboriginal flag is unique among Australia’s national flags, because the copyright of the image is owned by an individual.
A Federal Court ruling in 1997 recognised the ownership claim by designer Harold Thomas.
The Luritja artist has licensing agreements with just three companies; one to reproduce flags, and the others to reproduce the image on objects and clothing.
WAM Clothing, a new Queensland-based business, secured the exclusive clothing licence late last year.
Since acquiring it, the company has threatened legal action against several organisations.
The ABC understands WAM Clothing issued notices to the NRL and AFL over their use of the flag on Indigenous-round jerseys.
A spokesman for the NRL said the organisation was aware of the notices, but would not comment further.
The ABC has contacted the AFL, but no official response has been received.
WAM Clothing said simply it was “in discussions with the NRL, AFL and other organisations regarding the use of the Aboriginal flag on clothing”.
Cody Walker of the Indigenous All Stars recently wore an NRL jersey with the Aboriginal flag featured. (AAP: Daniel Pockett)
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.
It only became a recognised national flag in 1995 under the Keating government, but had been widely used by the Aboriginal community since the 1970s.
The Torres Strait Islander flag was also recognised as a national flag at this time, but the copyright is collectively owned by the Torres Strait Regional Council.
The move to adopt both flags as symbols of state was somewhat controversial at the time, with the then opposition leader John Howard opposing the move.
Indigenous artist Harold Thomas is the designer of the Aboriginal flag. (ABC News: Nick Hose)
Former head of the Australian Copyright Council Fiona Phillips said there could be an argument for the Government or another agency buying back the copyright licence from Mr Thomas.
“The fact that the flag has been recognised since 1995 as an official Australian flag takes it out of the normal copyright context and gives it an extra public policy element,” she said.
She said it was an image of significance to a large part of the nation and it was important there was some control to avoid potential exploitation.
“It’s quite unusual for copyright to be held by an individual and controlled by an individual rather than a government or statutory authority who, maybe for policy reasons, has other interests in mind,” Ms Phillips said.
“There has to be a way that Mr Thomas can be remunerated fairly but where other people can also have access to the flag.”
Fight to stop flag ‘monopoly’
A Victorian-based health organisation, Spark Health, which produces merchandise with the flag on it, was issued with a cease and desist notice last week and given three business days to stop selling their stock.
The flag represents much more than just a business opportunity, the organisation’s owner, Laura Thompson said.
“It’s been an important symbol to Aboriginal people for a really long time, a symbol of resistance, of struggle of pride, and that’s why we’ve got such a strong attachment,” Ms Thompson said.
The organisation started an online petition, that has attracted about 13,000 signatures, calling on Mr Thomas to stop the exclusive licensing arrangements.
“We want flag rights for our people, we’ve fought enough, we’ve struggled, we don’t want to struggle to use our flag now,” Ms Thompson said.
“We don’t want anyone to have a monopoly over how we use the Aboriginal flag. The fact they’re a non-Indigenous company doesn’t sit well with me.”
Laura Thompson was given three days to cease and desist selling her merchandise. (ABC News: Loretta Florance)
WAM Clothing said it would work with all organisations, and provide them with options to continue manufacturing their own clothing ranges bearing the flag.
“WAM Clothing has obligations under its Licence Agreement to enforce Harold Thomas’ Copyright, which includes issuing cease and desist notices,” a spokeswoman for the company said.
Mr Thomas said it was his “common law right” to choose who he enters licensing agreements with.
“It’s taken many years to find the appropriate Australian company that respects and honours the Aboriginal flag meaning and copyright and that is WAM Clothing,” he said.
Spark Health produced a range of clothing featuring the Indigenous flag to help fund its community programs. (ABC News: Loretta Florance)