Has The Government Actually ‘Freed The Flag’?

It's nowhere near as simple as it seems.

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Earlier this week, Prime Minister Scott Morrison declared that the Aboriginal flag is now free to be used by all Australians in a landmark copyright deal to acquire the rights for the sum of $20 million.

After years of campaigning — spearheaded by Clothing The Gaps — the flag is finally free. But is it really? Well, if you ask some — the purchase of the flag has colonised it, rather than freed it.

A Brief History of the Aboriginal Flag

The Aboriginal flag was designed by Harold Thomas. Thomas is the son of a Luritja woman and a Womai man, boring in Alice Springs in 1947. He was part of the Stolen Generation, taken from his family at age seven and fostered out to a family in South Australia.

Despite his traumatic start to life, Thomas won an art school scholarship at 17 and, in 1969, made history as the first Aboriginal person to graduate from art school.

The year after his graduation, Thomas designed the flag. “[The flag] was brought about by my experiences as an art school student, with my time among the greatest collection of Aboriginal material culture at the South Australian Museum,” he wrote in a Sydney Morning Herald opinion piece on Monday.

“When I created the flag, I created it as a symbol of unity and pride. That pride we have for our identity that harks back to the birthing of our dreaming, to the present existence and beyond.”

The flag was first flown at a land rights rally in Adelaide a year later in 1971, symbolising people expressing their cultural identity.

Two years after its initial design, the flag started being flown at the Aboriginal Tent Embassy in Canberra in 1972, and in 1995, Governor General William Hayden proclaimed both it and the Torres Strait Islander flag as official “Flags of Australia” under the Flags Act 1953.

Who Owned The Flag?

Unlike the Australian flag — which is covered under Commonwealth copyright, the Aboriginal flag’s copyright was exclusively owned by Thomas.

However, in 2018, he handed over the exclusive rights for media and apparel use to WAM Clothing — owned by former art dealer Ben Wooster, who previously landed himself in hot water for selling “Aboriginal artworks” that were actually made in Indonesia under his old company Birubi Art.

Since obtaining the copyright, WAM Clothing has made headlines for repeatedly issuing infringement notices to everyone from the AFL and NRL to Indigenous-owned not-for-profits.

Who Owns It Now?

It seems like a no-brainer to simply give the ownership rights of the flag to the people in which it represents. But instead, the ownership rights now belong to the Commonwealth — you know, the same entity responsible for colonisation and the atrocities that came with it.

Sure, this means that it’s free for all of us to use, but that may not be a good thing.

As it currently stands, the flag is free to use without seeking permission or paying a fee, as long as it is used in a “respectful and dignified way.”

“All Australians can now put the Aboriginal Flag on apparel such as sports jerseys and shirts. It can be painted on sports grounds, included on websites, in paintings and other artworks, used digitally and in any other medium without having to ask for permission or pay a fee,” Scott Morrison said in a statement.

While it’s great that no one — especially not non-Indigenous business owners who are profiting off the copyright — can restrict who can and can’t use the flag, the new rules mean that anyone and everyone can profit off it.

This — in theory — is great for Indigenous-owned businesses, many of which donate profits to charities or hire Indigenous staff, but it also opens up the risk for these businesses to be undercut by major companies that slap the flag on a lunchbox, mass produce it and sell it for a fraction of the price that any Indigenous-owned business could.

It’s also worth noting that Flagworld — a non-Indigenous business – maintains the exclusive manufacturer of Aboriginal flags. While the company won’t stop individuals from DIY-ing their own flags, this means you will not be able to purchase a flag made by an Indigenous-owned business.

Wayne Gregory, the managing director of Carroll & Richardson Flagworld, told The Guardian that the Coalition was misleading the public on how free the flag really is.

“As far as the flag’s concerned, it’s really business as usual. The only difference is the royalties will be paid to the government, which the government’s already indicated they’re going to use to fund programs for Naidoc, which is perfectly acceptable,” he said. “But what they’ve done is created the illusion that everything’s going to be free”.

Considering the flag has historically been used to protest against policies that put Indigenous people at a disadvantage on the land that was stolen from them, the fact that the flag itself may now be misused to do just that has angered the community.

How Much Was It Acquired For?

The copyright agreement cost the Australian Government $20.05 million, but the exact details of this agreement remain unknown.

We know the agreement was between Thomas and a group of private license holders — presumably including WAM Clothing –to hand over their rights to the use of the flag. According to The Guardian, this includes payments to WAM Clothing and Flagworld. It is unclear exactly how the money was split between each of the parties.

Thomas will still retain the moral rights, while royalties will now be put towards NAIDOC. Thomas has also noted that he will spend $2 million from his share to establish an Australian Aboriginal Flag Legacy not-for-profit organisation, as well as a $100,000 annual scholarship for Indigenous students in governance and leadership.

It remains unknown exactly how much each of the license holders received — and whether they stand to profit off the move.

Where Do We Go From Here?

The new copyright laws really open up the flag to everyone, including non-Indigenous people to whom the flag holds no significance and is being used simply to turn a profit.

When it comes to flag-bearing merchandise, there’s no guarantee that you’ll be supporting Indigenous Australians, or even that the product is free from slave labour.

In theory, it would be nice if the government thought about this and had some fail-safes to prevent the flag from being exploited by non-Indigenous people for a profit. But instead, the onus is now on the public to ensure they’re only buying flag-bearing merchandise from Indigenous-owned businesses.