AFL used Aboriginal Flag without copyright for last Indigenous Round

The AFL used the Aboriginal flag as part of last year’s Indigenous Round celebrations without copyright permission, only forking out for the priviledge once they received a bill.

Debate has swirled this week over the AFL’s inability to spray paint the flag inside the centre circle of grounds for this year’s celebration round, with the code’s bosses unable to strike a deal with the copyright licensee.

While most flags are not subject to copyright, the Aboriginal flag is unique because its designer Harold Thomas won a High Court battle in 1997 to receive payment for its use.

Since then Mr Thomas has enlisted three companies to control copyright licenses for clothing and media, souvenirs and flag making.

But the boss of one of those companies revealed how he had to send a bill to the AFL last year after noticing goal umpires were waving red, black and yellow flags after a goal.

‘We dealt with the AFL last year about using the flag in the centre square and for the goal umpires,’ Wayne Gregory, director of Carrol and Richardson flagworld, said.

‘They painted it on the ground and used it on the goal flags, and they did it without coming to us.

‘We had to send them a little note afterwards and say: “Just so you know, you need to pay to use the Aboriginal Flag” and they were very apologetic and happy to sort it.

‘We often find it is because people don’t know or they make assumptions, so you just sit down with people and explain it to them.’

The company in charge of digital and physical media – which painting the symbol on a football ground falls under – has now changed from Carrol and Richardson to WAM Clothing.

Seemingly unwilling to meet the financial requests of WAM Clothing, the AFL opted instead to write the word ‘Deadly’ in the centre circle.

The name of the Indigenous people local to the area where each game is played will also be written on the ground.

Previously WAM Clothing’s license over the Aboriginal Flag has led to controversy for AFL star Lance ‘Buddy’ Franklin.

Franklin was left ‘deeply disturbed’ after being criticised for paying WAM Clothing to be able to put the Aboriginal Flag on his personal clothing line.

The superstar forward later pulled clothes featuring the flag from production, but did point out that licensing its use through WAM Clothing was his only ‘legal’ avenue.

Seemingly unwilling to meet the financial requests of WAM Clothing, the AFL opted instead to write the word ‘Deadly’ in the centre circle (Pictured is AFL CEO Gillon McLachlan)

While most flags are not subject to copyright, the Aboriginal flag is unique because designer Mr Thomas won a High Court battle in 1997 to receive payment for when it is used (Pictured are the Geelong Cats running through an Aboriginal Flag banner at Indigenous Round 2019)

The inability of Aboriginal or Australian people to use the flag without approval from license holders has led to an online petition calling for the government to step in and buy the copyright from Mr Thomas.

It has so far gained more than 100,000 signatures. 

Max Markson, an expert in marketing and commercial dealings, believes $25 million and an ongoing royalty deal for Mr Thomas would be an appropriate fee.

There is precedent for such a deal, with the Australian Olympic Committee coughing up $13 million for the rights to the Boxing Kangaroo flag ahead of the 2000 Olympics. 

‘If the Boxing Kangaroo went for $13 million in 2000, the Aboriginal flag has to go for at least $25 million and when you do the deal, you set up an ongoing commission for any future deals,’ Mr Markson said.

‘So Harold Thomas gets an ongoing trailer fee where he picks up one or two per cent for any deals, if it’s licensed to a business or an AFL team for example.

‘If it’s licensed to a charity its free, but him or his descendants get an ongoing fee for eternity.

‘It’s a standard commercial deal. Take Donald Trump for example, if you want to use his name on something, even while he’s president, you have to give him 10 per cent in royalties.’

Federal Indigenous Affairs Minister Ken Wyatt said on Thursday that he had spoken to Mr Thomas about the issue previously and would continue to discuss it with him in the wake of the new controversy.

There is precedent for such a deal, with the Australian Olympic Committee paying $13 million to seize ownership of the Boxing Kangaroo flag (pictured) ahead of the 2000 Sydney Olympics

Indigenous AFL star Lance Franklin (pictured) poses with the Aboriginal Flag near the Sydney Harbour Bridge. Franklin was last year embroiled in controversy after he paid WAM Clothing for the rights to use the Aboriginal Flag on his own personal clothing brand

‘When you think about Harold and his statements, he has always talked about the flag being symbolic of Aboriginal people,’ Mr Wyatt told the ABC.

‘That symbolism is about the struggle, the relationship to land, but also it’s a symbol that he wants to see unify Australia. 

‘It’s unfortunate that some common sense has not prevailed.’

A further statement from Mr Wyatt’s office said the Federal Government is ‘seeking to resolve the matter, (but) it is a delicate and complicated issue’.

‘The minister would like to see a resolution to this matter in a way that respects the rights of the flag’s creator while ensuring the flag continues to be a symbol of unity for Aboriginal people.’