Free the flag: When does a symbol slip the bonds of copyright law and belong to a community?

When does the ownership of intellectual property slip the bonds of law and become a kind of ‘community’ property?

The question is just one sitting central to the ongoing dispute around the Aboriginal symbol used on everything from flags and t-shirts to tattoos and sporting fields.

The flag’s creator Harold Thomas says he wants to protect the symbol of unification from misuse.

However, it’s hard not to wonder who’s interests he’s protecting when his chosen licensees are sending cease and desist letters to organisations as varied as local Indigenous health groups and the AFL.

A solution touted in numerous tweets and articles is for the federal government to step in and buy out the copyright. Still, for that to effectively ‘free the flag’, they would also need to purchase lucrative licenses.

Even that step doesn’t guarantee universal access and permission to use and profit from the flag.

The Australian flag guidelines state the kinds of limits that would still apply: “The flag can be used for commercial purposes, including advertising, without formal permission, except when importing products, applying for trademarks and registering designs.”

All symbols and markers come with constraints, and the more broadly they are embraced by a community, the more likely people will run afoul of copyright and owner’s efforts to contain their use.

The story around the original Aboriginal flag tells of then-art student Harold Thomas designing it in 1971 for the Aboriginal land rights movement. Still, I can’t find anything that explains what inspired him to do it or who commissioned the design in the first place. You can read a full timeline of the flag here.

The Federal Court was satisfied, formally granting Thomas ownership under copyright law in 1997, and setting off the chain of events which places global use of a cultural icon in the hands of three companies.

The current disquiet appears to be in equal parts the licence monopolies and that the businesses who hold them are not Indigenous-owned. But, as the legal owner, surely it’s Thomas’ right to manage his affairs the way he sees fit? Even if that doesn’t meet others expectations of him.

Let me put aside the cultural significance for a minute and pretend a company commissions a symbol for campaign commemorating a special event.

The new symbol takes off in ways never imagined, and is embraced by people as reflecting on what they stand for. It’s shared around freely and used to promote other commemorations and to show people’s connection to the idea behind the original event. The symbol comes to represent the community’s pride and sense of identity.

Now the company has a problem. Do they enforce ownership and try to take back the symbol by threatening anyone using it with legal action? Or do they loosen their hold, embrace a new role as custodian and look for ways to support and share its use?

When he signed the most recent licence agreement in 2019, Harold Thomas is quoted as saying: “I can choose who I like to have a licence agreement to manufacture goods which have the Aboriginal flag on it.”

And also: “The Aboriginal flag is doing its job as it was intended to do, to bring unity and pride to all Aboriginals.”

You don’t get to eat your cake and have it too.

You can’t claim, on the one hand, your interest is in bringing unity and pride, and with the other hand, grant rights and support those who limit and threaten anyone else who wants to use it for that purpose.

At some point, Thomas will have to choose.

Right now, those who own and licence the flag appear firmly focussed on the money at stake. They seem willing to tarnish and trade earnings for the 40 years of goodwill people feel.

Go too far down that path and what they are fighting so hard to keep hold of might end up worth, not just less, but nothing.

See you next time.

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