Free the Flag Movement

 

Written by: Traci Preston



The hashtag “Free the Flag” movement made considerable headway during 2020. The aboriginal flag since its creation has appeared on everything around Australia. However, in 2019 some Aboriginal people had been ordered to stop using it. Aboriginals creators like the Clothing the Gap which is an Aboriginal owned and led social enterprise and fashion label that is based in Preston that commit 100 percent of their profits to support health promotion activities in Aboriginal communities. Few people, Aboriginals included, knew about copyright laws that constrained the use of the flag. As it stands, even Aboriginal groups must pay a non-Aboriginal-run business to use the flag on clothing and merchandise. This was met with much outcry and anger. Increased pressure put on the Australian government has led them to finally take action to take over the copyright.


Origins of the Aboriginal flag

Unlike most official flags, the Aboriginal flag is not owned by the government. The Aboriginal flag was created by Luritja artist Harold Thomas. The flag was first used at a National Aborigines Day march in Adelaide in 1971. The symbol gained national recognition when it was used at the Aboriginal Tent Embassy. It was used at rallies and in imagery on posters, T-shirts and Aboriginal organisation logos. The flag is rooted in symbolism. The black at the top represents Australia's First Nations people, the red on the bottom represents the connection to Earth, and the yellow circle symbolises the sun (considered the giver of life). During the 80s, Harold Thomas declared his rights to be recognized as the Aboriginal flags creator. Then in 1995 the Governor General issued a proclamation that declared Thomas' creation as the official flag of the Aboriginal people of Australia. In 1997 the federal court officially recognized Thomas as the sole author.

 

Under Copyright law what does this mean ?

The flag is protected under the Copyright Act and can only be reproduced in accordance with that law, or by permission of Harold Thomas. Thomas can grant licences to other parties to make copies of the flag or refuse permission. According to Australian law, the copyright will last for 70 years after his death, and can then be claimed by anyone Thomas assigns it. In 1997, Thomas made a worldwide licencing agreement with WAM Clothing, Birubi Art, Gifts Mate, and Flagworld giving them exclusive rights to use the design.

 

So what's the problem then?

In 2018, the federal court found that Birubi had breached consumer law by selling fake Aboriginal art and was fined $2.3 million which was never paid. After Thomas signed the exclusive licence and agency agreement with WAM Clothing, which is part owned by Wooster from Birubi Arts, they started issuing cease and desist notices to companies. Among those receiving “cease and desist” notices are the AFL (which uses the flag on club jerseys for its Indigenous round), the NRL, Spark Health (also the creators behind Clothing The Gap), several small Aboriginal community groups, charities, and health organisations. It is insulting for Aboriginal ran, supporting, and benefiting groups to receive legal letters demanding they stop printing the flag on their merchandise at the demand of a company that has exploited Aboriginal art and culture.

However there has been no reporting that Harold Thomas has regretted his decision, and has doubled down in defense of his actions.

 “As it is my common law right and Aboriginal heritage right, as with many other Aboriginals, I can choose who I like to have a licence agreement to manufacture goods which have the Aboriginal flag on it.”

“It’s taken many years to find the appropriate Australian company that respects and honours the Aboriginal flag meaning and copyright and that is WAM Clothing.”

 “The Aboriginal flag is doing its job as it was intended to do, to bring unity and pride to all Aboriginals. At times we get the few who snigger and are disenchanted. I can’t satisfy all black people who wish to break up the Aboriginal unification.”

The real concern is for the hundreds of small non-profit Aboriginal organizations around Australia worried about being responsible to pay a non-Indigenous owned company for any past use of what they see as “their” symbol. But under Australia's copyright laws, Mr Thomas and WAM Clothing are fully entitled to licence and reproduction fees.

 

 #FreeTheFlag

Outraged after receiving their letter the Clothing the Gap began the campaign to #FreeTheFlag. They wanted new licensing agreements over the flag's design, particularly for Aboriginal businesses and organisations.

"This is not a question of who owns the copyright of the Flag. This is a question of control," stated by the Clothing the Gap.

"Should WAM Clothing, a non-Indigenous business, hold the monopoly in a market to profit off Aboriginal peoples' identity and love for 'their' flag? We believe that this control of the market by a non-Indigenous business has to stop."

In one case, a Queensland Indigenous health charity was forced to pay WAM Clothing for using the flag on shirts given freely to patients who came to the clinic for a health check. WAM defended its actions stating the fee was based on its right to claim 20% of the manufacturing price. WAM offered to reduce the fee because it was a charity, providing they agreed to sign a confidentiality agreement. The charity refused and paid up the $2,200. They now give away T-shirts without the Aboriginal flag. To keep using it would have cost them between $8,000 and $10,000 a year.

Laura Thompson, a Gunditjmara woman, from Clothing the Gap has had strong comments on the action(s) of WAM. She is angered by those acts and views them as a non-Aboriginal company looking to profit from Aboriginal identity. She started an online petition that has received over 150,000 signatures that has been presented to parliament.

 "How can one person or business have a monopoly over it? The flag belongs to all Aboriginal people. Why do they have to pay for it?" Thompson told the BBC.

 "It's a symbol of our people's survival. Many of us don't identify with the Australian flag because for us it represents colonisation and invasion."

 WAM Clothing has since offered Laura Thompson free use of the flag, but has refused. WAM Clothing has said it invites anyone who wants to use the Aboriginal flag on clothing to contact them but WAM will not make public the extent of its licensing rights. The Australian Football League (AFL) refused to continue paying for the flag and other sports have stopped the use as well. The AFL has also come out in support of the Free the Flag campaign with all teams signing the pledge.

 

Government Action(s)

A number of Aboriginal politicians and well known figures have joined the copyright protest. The Senate approved an inquiry into the flag's licensing rights, and lawmakers passed a motion saying commercial interests were restricting the flag's use and "putting profit before pride". In 2019, the federal minister for Indigenous Australians, Ken Wyatt, said he was hopeful of finding a resolution to the disagreement but ruled out the government buying the copyright of the flag. He has also reported to be in talks with Harold Thomas but no specifics have been given.

“Mr Thomas shared his and his family’s deep concern to protect the integrity of the flag for all Australians, and reiterated his creative rights to his artwork,”

"I commit to doing everything I can to bring about a resolution that respects not only the artist of the flag, but a resolution respects the rights, enterprise and opportunity of all Australians."

 ““It’s not just any flag, it’s a flag born of struggle and the one uniting symbol for all Aboriginal peoples across this country. It’s something First Nations people feel deep ownership of and reverence to and I hope that everyone involved in this discussion can see that.” Labor’s spokesperson on Indigenous affairs, Linda Burney.



Sources:

https://www.theguardian.com/australia-news/2020/aug/22/freeing-the-aboriginal-flag-how-a-uniting-symbol-ended-up-in-the-hands-of-the-few

https://www.marieclaire.com.au/free-the-flag

 https://www.clothingthegaps.com.au/pages/free-the-flag-journey

https://www.bbc.com/news/world-australia-49315063



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