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Why I won’t be signing petitions about the Aboriginal flag



If you’re mad about some white people controlling the use of the Aboriginal flag, there are some things you should know. This is not a clear-cut case of white people trying to exploit Aboriginal culture or intellectual property for multiple reasons. (A disclaimer: I am not a lawyer, and no part of this article should be taken as legal advice.)

Australian, Aboriginal and Torres Strait Islander flags (Brooke Ottley)

Unfortunately, Australian copyright law has never recognised a group of people as the owner of a creative work. It only has scope to identify an individual or a business as copyright owners. For example, your employer typically owns the copyright rights to anything you write or create as part of your usual work duties. I own the copyright rights to these words I have typed.

The Australian Copyright Act 1968 does not adequately protect the intellectual property of Aboriginal people. It does not allow the benefits from publishing and reproducing Indigenous Cultural and Intellectual Property (ICIP) to be easily transferred to, or shared with, all of the owners of that ICIP (being a group of people rather than an individual or a business).

In 1997 there was an attempt to place the Aboriginal flag under the protection of the Flags Act 1953, which meant our majority white Australian government would control how the flag is used.

Following this development, Harold Thomas*, the Aboriginal creator of the Aboriginal flag, claimed copyright ownership in 1997. Thomas accessed the simplest, most common and affordable form of intellectual property protection available to him to prevent the flag from landing in the hands of the Australian government.

Over 20 years later, Harold has licensed (not sold) the flag to WAM clothing, so they can reproduce and publish it on products in the specific category of ‘clothing’. I assume Harold has charged WAM clothing appropriately for this license because Harold is a smart man, and this is not the first time he has licensed his work.


'Don’t be mad at Harold Thomas, or even WAM clothing (this time). Be mad at the inflexibility and cultural inappropriateness of Australian copyright legislation.'


WAM clothing has chosen to exercise their exclusive right to reproduce the flag on clothing by requesting that other clothing manufacturers (including football codes and Aboriginal businesses, who likely never sought explicit permission from Thomas to reproduce the flag) cease their use of the flag on clothing products only, or engage WAM in a commercial contract.

Thomas’ choice to do business with WAM was perhaps ill-advised due to the licensee’s history of exploiting ICIP. While the owners of WAM were sharing the benefits of their new venture with Thomas, they were bullying Aboriginal artist Michael Connolly for drawing attention to their previous unethical practises. 

Without Connolly’s activism, the owners of WAM might never have been investigated and subsequently fined by the ACCC, yet he received no formal acknowledgement for his work. I will always defend the self-determination of Aboriginal artists; hence, I support Connolly’s crusade but refuse to engage with the Aboriginal flag petition.

An Aboriginal man is benefitting from licensing of part of his copyright rights because colonial law does not allow a group of people to own and benefit from those rights. Don’t be mad at Harold Thomas, or even WAM clothing (this time). Be mad at the inflexibility and cultural inappropriateness of Australian copyright legislation.

Any campaigns or petitions against Thomas’s decision to license his creative work serve to undermine his autonomy, his right to earn an income from his artistic work, disrespect his intelligence and ignore the flaws with our legal system. Organisations such as ArtsLAW and Indigenous law firm Terri Janke and Company have long highlighted the insufficient legal protections for ICIP. This issue is not new, and it certainly doesn’t just affect our flag.


*Note: I do not agree with or endorse Thomas’ comments in his latest interview about ‘recently identified’ Aboriginal people, nor his implication that Aboriginal people living in remote communities and ‘in and out of jail’ are more authentic than other Aboriginal people, nor his doubts about the legitimacy of the Aboriginal identities behind Clothing the Gap and whether they actually donate some of their income to Aboriginal charities or causes. There are many reasons Aboriginal people might have ‘recently identified’. Most are the result of Australia’s various and ongoing processes of colonisation, genocide, and systemic erasure of Aboriginal identity.



Brooke OttleyBrooke Ottley is a qualified Aboriginal and Torres Strait Islander graphic designer with over 8 years industry experience. She has taught graphic design to adult learners since 2016, drawing exceptional feedback and praise from her students. She is also a successful copyright claimant for her own artistic works.

Main image: Supplied Brooke Ottley

Topic tags: Brooke Ottley, Aboriginal, Indigenous, Wuthathi, Gunggari, Torres Strait Islander, copyright, ICIP



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Existing comments

Thank you Brooke Ottley for this explanation. As a customer of Dreamtime Kullilla-Art I have been aware of Michael Connolly's problems with all this business. I was not aware of the ins and outs of the copyright law.

Janet | 25 August 2020  

Excellent comment Brooke. Copyrighr law needs revision to protect all sides, including public interest. Its a beautiful flag.

Jill Walker | 25 August 2020  

Well written.

Guillaume | 25 August 2020  

Brooke thanks for that analysis. Keeping it away from the Australian Government was a good move. And I agree, the Copyright Act 1968 is long overdue for an overhaul. Clothing does not include skin. Footballers could tattoo the image of the flag on their skin. The flag could be projected onto the big screen. Any number of ways to get around the clothing exclusive held by WAM. eg temporary decals that transfer the image to skin when wet. Otherwise if folk are aggrieved at the WAM exclusive assigned by Thomas, why cant someone else come up with a new Aboriginal flag? Perhaps the Aboriginal flag could replace the union jack within the Australian flag? That's not a clothing issue. It would acknowledge the Aboriginal people and eschew our Colonial past. Though of course it might be caught by the Flags Act.

Francis Armstrong | 25 August 2020  

Is there not another way around this? Aboriginal people as a group cannot own copyright or other intellectual property rights. This is not discrimination, it simply means they are only an unincorporated association, and this applies throughout Australia. Somebody tell me why the rights could not be sold to a representative Aboriginal body that is registered as an incorporated entity, or jointly held by that body and Harold Thomas. Is it simply because there is no agreed representative body? Is the licence held by WAM an exclusive licence?

Dennis | 25 August 2020  

@Dennis: There was a representative body, ATSIC. According to Thomas, they're the ones who pushed for the flag to be controlled under the Flag Act in the 1990s. So I would understand and respect Thomas' caution or aversion to allowing any organisation to control the flag. The Copyright Act makes it impossible to attribute all Aboriginal people as the copyright owners.

Brooke | 25 August 2020  

Thank you for this article. If not for learning the reason behind the copyright in the first place. A good evenhanded analysis.

Susan | 26 August 2020  

Thanks, Brooke. I am aware of the representative body that you refer ty point was that an incorporated representative body could still own copyright. Is that body you refer to incorporated, i.e., properly registered under the associations incorporation Act? Or ditto any other recognised representative body? I also understand that there are some divisions among the Aboriginal communities, make setting up a genuinely representative body difficult. Is that correct?

Dennis | 26 August 2020  

Tell me again how the flag design coming under the act would have een a bad thing? Would it not have protectedthe design from being controlled by any company? Would it not have assured ongoing use by Australian public ...esp Aboriginal groups without fear of prosecution?

Phillip Haar | 26 August 2020  

@Francis WAM own the digital rights so it couldn't be projected on the screen, or used as an emoji etc etc Another white couple owns the flag rights too so to make a temporary tattoo one would assume you'd have to pay the flag distributors or this could fall under the digital copyright as it's printed

Kat | 26 August 2020  

‘The designer and copyright owner of the Aboriginal flag has rejected claims he is preventing his own people from using their flag….and says he created it for the unification of his people….in this exclusive interview on CAAMA Radio in 2019 Mr Thomas claimed no one had ever come forward to suggest the flag belonged to the Aboriginal people.’ If so, then ‘part of his copyright rights because colonial law does not allow a group of people to own and benefit from those rights’ is incorrect. It is incorrect because the writer is saying that it is morally obligatory upon Thomas to assign his ownership to others. If Thomas is mistaken and others have come forward to suggest to him that the flag belongs to “the Aboriginal people”, it is still wrong to threaten him with moral blackmail. Does copyright in Namatjira’s art belong to ‘the Aboriginal people’? Just because everyone who is Aboriginal wants Thomas’ art does not mean it belongs to them. That is the extortion of group privilege over individual rights, in other words, socialism or communism. As a practical matter, if the flag belonged to ‘the Aboriginal people’, what royalty should Thomas get? One-eight-hundred-thousandth of what he is getting now?

roy chen yee | 27 August 2020  

Fast track a treaty, adjust the Constitution to fit the treaty, implement a new anthem sung in Indigenous dialect and English a la SA and NZ and then produce an Australian flag which indicates the history of a united nation under the Southern Cross by superimposing the Aboriginal flag on the Union Jack.

john frawley | 27 August 2020  

Why do you suggest that the flag should be in collective ownership if it is the work of Harold Thomas? Did Aboriginal culture have a concept of vexillology? Or of intellectual property? Thomas made this flag as his own efforts in a context of Australia's legal and cultural systems. He has asserted his property rights within that system. He cannot be criticised for that. It is nothing to do with Aboriginal history, customs or tradition.

Bob | 28 August 2020  

@Bob, have a listen to Harold's interview which is linked in the article - he describes the flag's origins in Aboriginal activism and explains why he did not assert his copyright rights until 20 years after the flag's creation. Yes, we most certainly did, and still have a concept of ICIP, as well as systems and rules about knowledge sharing.

Brooke | 30 August 2020  

Simply do what the Colombian government does with respect to copyright laws of refuse to deal with lawsuits in its legal system. That allows any foreign piece of literature or text book in the world to be reproduced to benefit local learning.

Aurelius | 14 October 2020  

I had no idea there was copyright regarding the Aboriginal flag which in my opinion should be our national flag. It is the symbol of the 1st Nation of Australia. Every country has its 1st nation flag . Britain, South Africa, Scandinavian countries, etc. it is a beautiful flag which suits us in Australia.

Mira | 10 February 2021  

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