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  • Writer's pictureDavid Baker

Australian Government Buys Copyright to Aboriginal Flag

The official Australian flag is easily recognized but it is not the only official flag of the former British colony.

Anyone familiar with the Australian flag recognizes it as having the Union Jack in the upper corner while the rest of the design consists of a royal blue field highlighted by six stylized stars. But this is not the only official flag of Australia. There is also an aboriginal version.

Recently, the federal government in Canberra purchased copyrights to the Aboriginal flag for $14 million USD which will allow anyone who wishes to fly it to do so without landing in legal hot water. The announcement came on the eve of Australia Day (derided by some as “British Invasion Day,” the day British forces landed in 1788 and claimed the land for the British Empire), a national holiday celebrating the founding of the then-British colony.

Since 1995, the Aboriginal flag, a black, yellow and red flag which was designed by Indigenous artist Harold Thomas for a protest in 1971, has been recognized as an official flag of Australia, but in recent years, Thomas has demanded payment for its use. Previously, the flag and the owner of the copyright flag had been embroiled in a series of disputes over rights to the copyright and the use of images of the flag.

When it was adopted as the flag of the Aboriginal people of Australia by proclamation of the Governor-General on July 14, 1995, several other claimants came forward asserting that they were the artist behind it. However, successfully established his claim to authorship before the Federal Court in 1997 and then granted licenses for its use first to a company called Flags 2000 and then to clothing company WAM.

Under Australian law, Thomas’ copyright would have lasted for 70 years after his death, and could have been claimed by his heirs or anyone else to whom he might choose to assign it. Thomas could assert his rights against anyone making any copy of the flag, even if they were not selling it or using it commercially – this could even include bringing an action against someone with a tattoo of the flag. Now, those rights lie with Australia.

Why It Matters. Whether or not Betsy Ross really did design the original flag of the United States during its war with Great Britain way back in the 1700’s, she (or her descendants) would not now own the rights to the flag for several reasons, mainly because U.S. copyrights do not extend long enough for them to still be enforceable on the flag design. And setting aside the fact that the current version of the U.S. flag was not finalized until Hawaii became a state in 1959, official U.S. flag designs are not copyrightable and so no one holds exclusive rights to them.

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