When the AFL’s annual Indigenous Round kicks off today, it will do it without displaying the iconic red, yellow, and black flag.
For the last few years the Aboriginal flag has been painted onto the grounds centre circle for the Sir Doug Nicholls round, which celebrates the contribution of Aboriginal and Torres Strait Islander players and their cultures in the game. But this year that won’t happen — and it’s stirred up a huge controversy about copyright, licensing, and ownership of the iconic symbol.
The discussion has also put a national spotlight back on the Free The Flag campaign, which is fighting for Aboriginal businesses to be able to use the Aboriginal flag.
It’s a complicated issue, so here we’ve broken down what you need to know.
How Can A Flag Be Copyrighted?
The Aboriginal flag is one of Australia’s recognised national flags, but it’s also a copyrighted symbol.
That copyright is owned by the designer of the flag, Luritja artist Harold Thomas, who designed the flag in 1971. In 2018 he granted WAM Clothing an exclusive licence to reproduce the flag commercially, and their website lists their brand as the “exclusive worldwide copyright licensee”.
That doesn’t affect your everyday flag-fliers, but it does affect companies who want to use the flag on things like clothing.
Controversially, WAM is a non-Indigenous owned company. The fact that Benjamin Wooster, one of their directors, also owned a company that went to court for selling fake Aboriginal art that was actually made in Indonesia doesn’t help.
The company has also received bad press in the past for forcing an an Indigenous charity to pay them after using the flag on free t-shirts they were donating, and for threatening legal action against other companies who used the flag on products without permission.
The Free The Flag campaign is run by one of these businesses, Aboriginal clothes brand Clothing The Gap, a who received a “cease and desist” letter last year for reproducing the flag on some of their garments.
“We believe that this control of the market by a non-Indigenous business has to stop. Viable channels for new licensing agreements, especially those for Aboriginal organisations and businesses, must be created,” their website reads.
Junkee has reached out to Clothing The Gap and WAM Clothing for comment.
Where Does The AFL Come In?
Last year the NRL and AFL were also threatened with legal action for using the flag on their Indigenous Round jerseys. This year the AFL could not reach an agreement with WAM Clothing, so the flag will be missing from the centre circle, the guernseys and the goal umpires’ flags.
The flag’s notable absence during the round dedicated to Indigenous players has sparked a fresh wave of support for the Free The Flag campaign, and sixteen clubs have since thrown their support behind the campaign. Several Indigenous AFL greats have also backed the AFL’s decision not to pay to use the flag.
Thank you to @AFL clubs @CollingwoodFC @stkildafc @westernbulldogs @GWSGIANTS @brisbanelions @sydneyswans @GeelongCats @Adelaide_FC @WestCoastEagles @CarltonFC @HawthornFC @NMFCOfficial @melbournefc @freodockers @PAFC @GoldCoastSUNS for standing with the freetheflag campaign pic.twitter.com/axjF62UcbD
— clothingthegap (@clothingthegap) August 21, 2020
— Collingwood FC (@CollingwoodFC) August 20, 2020
— Western B_lldogs (@westernbulldogs) August 21, 2020
People are still free to use the image for non-commercial use, and Essendon legend Michael Long told The Herald Sun he wanted to see supporters bring Aboriginal flags to the grounds.
“I didn’t believe it when I first heard about it. I didn’t think it was real. It is a disgrace. That flag belongs to all Aboriginal people — not just to any individual,” he said.
“We are having the biggest game ever here in Darwin as part of Indigenous round and that flag is really symbolic.”
What Does The Copyright Owner Think?
A Free The Flag petition pushing for a change to the licensing agreement has so far received more than 120,000 signatures.
The petition states, “This is not a question of who owns copyright of the Flag. This is a question of control”, but in copyright law that’s not really how it works — the owner of the work can control how the work is used.
Junkee attempted to contact Harold Thomas to get his thoughts but has so far been unsuccessful.
I feel like I need to correct some misconceptions around the Aboriginal flag because NOBODY seems to know how this works. Copyright for the flag belongs to its designer Harold Thomas. He licensed it to WAM clothing for CLOTHING only. It’s free for use for non-commercial use.
— Claire G. Coleman (@clairegcoleman) August 20, 2020
However, last year in an exclusive interview with Central Australian Aboriginal Media Association (CAAMA) Radio he defended his legal right to grant a license to who he chose, and rejected claims he was preventing his own people from using the flag.
“This idea of a petition to have a go at the designer of the flag, it has fractured the unification of our people. Fractured it. You know what, that fracture has repercussions if we were to step forward for a treaty, because we have to be united,” he said.
He also claimed there were plenty of Aboriginal companies that are engaging with WAM and cooperating with the license agreement.
Yesterday Indigenous Australians Minister Ken Wyatt said his department is looking into options to solve the commercial issues, and the National Indigenous Australians Agency is having conversations with Mr Thomas.
“Hopefully what I would hope to see is common sense prevail and the use of the flag become more free for significant events,” he told the ABC.
“The use of the flag … should be available to all people who want access to it. And right now it’s not right because it is based on profit.
“I’m also very cognisant of [intellectual property] and I’m working with my agency in looking for a way forward that does not breach the individual ownership of a product by any Australian.”
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