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Copyright Deal Betrays Indigenous Australians

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Copyright Deal Betrays Indigenous Australians

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The legal system in Australia is completely out of touch with Indigenous culture and its preference for collective ownership.

Our journalism usually sits behind a paywall, but we believe this is the time to make more of our content freely available to as many readers as possible. For more free coverage, sign up to COVID-19 Watch.

Indigenous people are a collective people. We are of the land and we are responsible for our people and communities. Culture is found in our art, ceremony, stories, songs and dance passed on for generations to the community - not any one individual. Our culture is centred on our kinship structures and the responsibility that entails. This responsibility is sacred.

In a colonised country, the integrity of that culture of community against individualism and capitalism is of the utmost importance, which is why there is a real sense of betrayal and grief in the Indigenous community at the moment. This follows the licensing of the copyright for the Aboriginal flag by designer Harold Thomas to WAM Clothing, a Queensland based non-Indigenous corporation. Not only was this licence granted to a non-Indigenous corporation, but it was done so exclusively, to the detriment of the collective - the community.

Our symbol of resistance, our symbol that we have used to differentiate ourselves from the homogenous collective of Australia has been exploited for individual gain in the name of capitalism - the antithesis of our culture. To rub salt in the wound, WAM Clothing has started shooting off cease and desist letters to Aboriginal businesses who create products that feature our flag.

Of course, the exploitation and commoditisation of Indigenous culture is rife and has been ongoing. However, when a collective and community symbol is exploited in this manner so counter to cultural protocol, it highlights once again the unethical practices of using copyright law to claim ownership over collective Indigenous property.

Why is Indigenous cultural and intellectual property subject to laws that fail to honour culture and communal ownership? Why is the collectively owned Aboriginal flag treated any differently to the Australian flag, which can be commercialised without permission provided it is not imported? Why then, is one non-Indigenous corporation able to claim ownership over the licence to use our symbol?

Under current intellectual property law, any Australian individual or company can apply for rights to Aboriginal products or language - referred to as Indigenous knowledge - and we have seen this in practice. With the burgeoning "alternative health" market, ancient remedies have been sought out and capitalised on by unscrupulous corporations. This happened with the trademark of our traditional medicine Gumby Gumby.

Now that the growing resistance to colonial oppression is gaining more attention and support from the non-Indigenous community thanks to social media, WAM Clothing has made a perfectly legal commercial decision to seek exclusive rights to use the flag. While legal, this is neither moral nor ethical.

Read more >

The legal system in Australia, particularly with the protection of Indigenous cultural intellectual property, is out of touch with the nature of Indigenous culture and simply asserts the values of the colonising force. The legal system predominantly supports the structures established to ensure market, trade and profit. Despite clear evidence of countless copyright breaches involving mass production of Indigenous art and other products, the legal system has failed to adequately address this in order to protect the Indigenous community. But when it comes to the exploitation of our culture, our community and our vulnerability, non-Indigenous communities have the advantage and resources to use the copyright laws to shut us out.

It is unsurprising to find out that Ben Wooster, part owner of WAM Clothing, has a long association with Harold Thomas spanning 10 years, through his other business Birubi Art. Birubi Art has sold tens of thousands of Aboriginal boomerangs, bullroarers, didgeridoos and message stones throughout Australia under the representation that such products were "genuine" and "Aboriginal". However, those products were mass produced in Indonesia. Birubi Art has since gone into administration, after the Federal Court found against it for false and misleading statements and breaches of Australian consumer law.

So with Birubi Art under administration for unethical conduct that breached Australia's consumer standards - not to mention the abhorrent breaches of Indigenous intellectual property - Wooster pops straight back up as co-owner of WAM Clothing to hold the exclusive licence to use the Aboriginal flag.

The market requires significant reform to stamp out the clear exploitation of culture by non-Indigenous companies who have no connection to community and do nothing to give back to the communities they make a profit from. Suffice to say, the community is reeling, feels betrayed by Holt, and there will likely be challenges to this exclusive licence given it is a significant departure from culture and cultural protocol.

Peter Fray
Editor-In-Chief of Crikey

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Aboriginal flag copyright deal betrays Indigenous culture

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The legal system in Australia is completely out of touch with Indigenous culture and its preference for collective ownership. Our journalism usually sits behind a paywall, but we believe this is the time to make more of our content freely available to as many readers as possible.

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Australian Olympic gold medallist Nova Peris is leading the fight against a clothing company that bought the copyright* to the Aboriginal flag.

WAM Clothing was given exclusive* rights to use the Aboriginal flag on clothing by Luritja* artist Harold Thomas, who designed the flag in 1971.

WAM Clothing has reportedly sent several "cease and desist*" notices to Aboriginal-owned businesses that use the flag on clothes, along with the AFL, which uses images of the flag on club jerseys for its indigenous round.

Ms Peris this week took a Change.org petition with about 50,000 signatures to a group of Labor politicians.

Speaking to ABC Radio, the 1996 Olympic gold medal winner explained if she was competing today, she would have to get WAM's permission to wear the flag on her clothing to race or face legal action.

"We pretty much have to get down on one knee and beg them to use our flag. We have to pay to use it," Ms Peris said.

"In 1995 there was a proclamation* made by the Governor-General to claim this flag as the flag of the Aboriginal people. So it was a flag before a legal copyright came over the top.

"We want equal rights to our flag like other Australians have equal rights to their flag.

"When you look at that flag it's symbolic of us as a race of people that goes back 50,000 years, even though it's only 48 years old."

She criticised Mr Thomas' decision to licence the flag to WAM, which was founded by non-indigenous owners Semele Moore and Been Wooster in 2018.

"(Mr Thomas) basically said, 'This is my flag, this is my dreaming, this belongs to my family', and so Aboriginal people across the country are like, 'What the hell? How do you say that?'

"We the people have made that flag and elevated it to its status* today."

The Change.org petition was started in June by Spark Health, an Aboriginal-owned and run business that focuses on indigenous health and welfare. Spark Health is one of the companies threatened with legal action.

It uses the Aboriginal flag on its Clothing The Gap products, which help raise money to go back into the Aboriginal community.

The petition calls for the licensing agreement to be changed.

"This is not a question of who owns copyright of the flag. This is a question of control," the petition reads.

"Should WAM Clothing, a non-indigenous business, hold the monopoly* in a market to profit off Aboriginal people's identity and love for 'their' flag?

"We believe that this control of the market by a non-indigenous business has to stop."

However, WAM Clothing said in a statement it had reached out to Spark Health and offered to discuss a resolution* but received no reply.

WAM Clothing also confirmed it was in discussions with the NRL and AFL about the use of the flag on clothing.

The company noted that before it entered into the licence agreement with Mr Thomas he was not receiving recognition or royalties from the majority of companies reproducing the Aboriginal flag.

"We're pleased that Harold is now starting to receive his rightful recognition and subsequently royalties for his copyright," the statement read.

"WAM Clothing has obligations* under its licence agreement to enforce Harold Thomas' copyright, which includes issuing cease and desist notices."

The company also included a statement attributed to Mr Thomas.

"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 flag designer said.

"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*."

Mr Thomas has licensing agreements with two other companies - one to reproduce the flags and another to reproduce the image on objects.

ABORIGINAL FLAG
The flag was designed by Harold Thomas, a Luritja man of Central Australia, and was first flown on National Aboriginal Day in Adelaide in 1971.

The flag is a coloured rectangle divided in half horizontally, the upper half black and lower red. A yellow circle sits at the centre of the rectangle.

Mr Thomas said the colours of the flag represent the Aboriginal people of Australia, the red ochre colour of earth and a spiritual relation to the land and the sun, the giver of life and protector.

Aboriginal athlete Cathy Freeman attracted criticism at the 1994 Commonwealth Games by carrying the Aboriginal flag as well as the Australian national flag during her victory lap after winning the 200m and 400m sprints.

In 1995 the Aboriginal flag was recognised by the Australian Government as an official 'Flag of Australia' under the Flags Act 1953.

At the 2000 Sydney Olympics, Ms Freeman won the 400m gold medal and again carried both the Australian national flag and the Aboriginal flag, as well as her yellow, red and black running shoes when she ran a victory lap. This time, instead of being criticised, she was widely congratulated for both her sporting achievement and for carrying the Aboriginal flag.
Source: Australian Institute of Aboriginal and Torres Strait Islander Studies
NOVA PERIS
Nova Peris is 48 years old and was born in Darwin.

In 1996 she became the first indigenous Australian to win an Olympic gold medal, as a member of the Hockeyroos team in Atlanta, US.

She was 1997 Young Australian of the Year.

She then switched to running. In 1998 she won Commonwealth gold medals for the 200m and as part of the 4x100m relay team in Kuala Lumpur, Malaysia.

At the 2000 Olympics in Sydney she reached the semi-final of the 400m and was a member of the 4x400m relay team, which placed fifth.

In 2013 she was elected to the Senate for the Northern Territory, the first indigenous woman elected to federal parliament.

Source: Australian Olympic Committee
GLOSSARY

copyright: a legal right to restrict other people's use of an artwork

exclusive: the only one allowed

Luritja: an indigenous nation of people of parts of NT and WA

desist: stop

proclamation: public or official announcement

status: official classification of something

monopoly: one person or company has all the rights

resolution: agreement

obligations: the things someone should do

unity: being in agreement as one

disenchanted: fed up; has lost hope

unification: bringing everyone together

EXTRA READING PM wants national day for indigenous Aussies NZ says Australia should change its flag Hobart could be known as nipaluna Queues of climbers spoil Uluru and parklands Student's anthem protest
QUICK QUIZ

1. What did the Governor-General do about the Aboriginal flag in 1995?

2. What is a benefit of the copyright agreements for Harold Thomas, who designed the flag?

3. Describe the Aboriginal flag and what it represents.

4. What did Cathy Freeman carry on her victory lap after the 400m final at the Sydney Olympics?

5. What Olympics and Commonwealth gold medals has Nova Peris won?

LISTEN TO THIS STORY
CLASSROOM ACTIVITIES
1. Form an opinion
Where do you stand on this issue?

To form an opinion on an issue like this it is important to look at all points of view and the reasons people hold that point of view.

Create a two-column chart, labelled WAM CLOTHING and NOVA PERIS

Read through the article carefully and note down under each heading any reasons or evidence that supports their stance on the issue.

For example: Under WAM CLOTHING - you could write Harold Thomas was the artist who designed the flag and deserves to be recognised and to collect royalties.

Under NOVA PERIS - you could write WAM Clothing was not founded by indigenous Australians.

Can you add any more points to support either side of this issue?

To finish, write a paragraph outlining your opinion of this issue. Do you think this clothing company should continue to have copyright of the Aboriginal flag or should the copyright should be lifted? Include the reasons you believe justify this opinion.

Time: allow 30 minutes to complete this activity
Curriculum Links: English, Personal and Social Capabilities, Aboriginal and Torres Strait Islander Histories and Cultures, Intercultural Understanding

2. Extension
Use your opinion to help you write a letter to the Labor politicians either in support of the petition or against it. Make sure you include reasons why you hold this opinion. Use emotive language to help convince the reader to agree with you.

Address your letter correctly.

Time: allow 30 minutes to complete this activity
Curriculum Links: English, Personal and Social Capabilities, Aboriginal and Torres Strait Islander Histories and Cultures, Intercultural Understanding

VCOP ACTIVITY
After reading the article, with a partner, highlight as many pieces of punctuation as you can find in green. Discuss how these are being used, where and how often. What level of the punctuation pyramid is the journalist using in this article?

HAVE YOUR SAY: Share and explain your opinion on whether the clothing company should be able to restrict the use of the Aboriginal flag.
No one-word answers. Use full sentences to explain your thinking. No comments will be published until approved by editors.

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Fight to free Aboriginal flag from restrictions

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Australian Olympic gold medallist Nova Peris is leading the fight against a clothing company that bought the copyright* to the Aboriginal flag. WAM Clothing was given exclusive* rights to use the Aboriginal flag on clothing by Luritja* artist Harold Thomas, who designed the flag in 1971.

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Form & Symbolism

The Aboriginal flag is divided horizontally into halves. The top half is black and the lower half red. There is a yellow disk in the centre of the flag.

The meaning of the three colours in the flag, as stated by Harold Thomas, is:
Black - represents the Aboriginal people of Australia.
Red - represents the red earth, the red ochre used in ceremonies and Aboriginal people's spiritual relation to the land.
Yellow disk - represents the Sun, the giver of life and protector.

History of the Flag

The Australian Aboriginal Flag was designed by artist Harold Thomas (a Luritja/Wompei) man and was first flown at Victoria Square in Adelaide, SA, on National Aborigines Day, 12 July 1971.
It became the official flag for the Aboriginal Tent Embassy in Canberra after it was first flown there in 1972.
Since then, it has become a widely recognised symbol of the unity and identity of Aboriginal people.

In view of the flag's wide acceptance and importance in Australian society, the Commonwealth took steps in 1994 to give the flag legal recognition. After a period of public consultation, the Aboriginal flag was proclaimed a 'Flag of Australia' under section 5 of the Flags Act 1953 in July 1995.
In 1997 the Federal Court recognised Harold Thomas as the author of the flag. Copyright
The Australian Aboriginal Flag is protected under copyright and may be reproduced only in accordance with the provisions of the Copyright Act 1968 or with the permission of Harold Thomas. Contact details for Mr Thomas are:
Permission is not required to fly the Australian Aboriginal Flag.
Display

The Aboriginal flag should be flown or displayed with the black at the top and the red at the bottom. Any questions on how and when to display the Australian Aboriginal Flag should be directed to:

Commonwealth Flag Officer

Awards and National Symbols

Department of the Prime Minister and Cabinet

3-5 National Circuit

Barton ACT 2600

Telephone 02 6271 5629

Related Topics:

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Australian Aboriginal Flag - Aboriginal Australian Art & Culture

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The Aboriginal flag is divided horizontally into halves. The top half is black and the lower half red. There is a yellow disk in the centre of the flag. The meaning of the three colours in the flag, as stated by Harold Thomas, is: Black - represents the Aboriginal people of Australia.

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Australia's major football codes have been drawn into a conflict over the copyright of the Aboriginal flag, after a non-Indigenous company secured exclusive clothing rights to the flag.

In late 2018, a new non-Indigenous business secured the exclusive licence to reproduce the Aboriginal flag on clothing

Since then, WAM Clothing has threatened legal action against several organisations

A copyright expert says the Government could buy the licence to ensure community access to the flag

The Aboriginal flag is unique among Australia's national flags, because the copyright of the image is owned by an individual.

A Federal Court ruling in 1997 recognised the ownership claim by designer Harold Thomas.

The Luritja artist has licensing agreements with just three companies; one to reproduce flags, and the others to reproduce the image on objects and clothing.

WAM Clothing, a new Queensland-based business, secured the exclusive clothing licence late last year.

Since acquiring it, the company has threatened legal action against several organisations.

The ABC understands WAM Clothing issued notices to the NRL and AFL over their use of the flag on Indigenous-round jerseys.

A spokesman for the NRL said the organisation was aware of the notices, but would not comment further.

The ABC has contacted the AFL, but no official response has been received.

WAM Clothing said simply it was "in discussions with the NRL, AFL and other organisations regarding the use of the Aboriginal flag on clothing".

The Aboriginal flag has been widely used on the country's sporting fields, carried by Cathy Freeman in iconic moments at the 1994 Commonwealth Games and 2000 Sydney Olympics.

It only became a recognised national flag in 1995 under the Keating government, but had been widely used by the Aboriginal community since the 1970s.

The Torres Strait Islander flag was also recognised as a national flag at this time, but the copyright is collectively owned by the Torres Strait Regional Council.

The move to adopt both flags as symbols of state was somewhat controversial at the time, with the then opposition leader John Howard opposing the move.

Former head of the Australian Copyright Council Fiona Phillips said there could be an argument for the Government or another agency buying back the copyright licence from Mr Thomas.

"The fact that the flag has been recognised since 1995 as an official Australian flag takes it out of the normal copyright context and gives it an extra public policy element," she said.

She said it was an image of significance to a large part of the nation and it was important there was some control to avoid potential exploitation.

"It's quite unusual for copyright to be held by an individual and controlled by an individual rather than a government or statutory authority who, maybe for policy reasons, has other interests in mind," Ms Phillips said.

"There has to be a way that Mr Thomas can be remunerated fairly but where other people can also have access to the flag."

Fight to stop flag 'monopoly'

A Victorian-based health organisation, Spark Health, which produces merchandise with the flag on it, was issued with a cease and desist notice last week and given three business days to stop selling their stock.

The flag represents much more than just a business opportunity, the organisation's owner, Laura Thompson said.

"It's been an important symbol to Aboriginal people for a really long time, a symbol of resistance, of struggle of pride, and that's why we've got such a strong attachment," Ms Thompson said.

The organisation started an online petition, that has attracted about 13,000 signatures, calling on Mr Thomas to stop the exclusive licensing arrangements.

"We want flag rights for our people, we've fought enough, we've struggled, we don't want to struggle to use our flag now," Ms Thompson said.

"We don't want anyone to have a monopoly over how we use the Aboriginal flag. The fact they're a non-Indigenous company doesn't sit well with me.

WAM Clothing said it would work with all organisations, and provide them with options to continue manufacturing their own clothing ranges bearing the flag.

"WAM Clothing has obligations under its Licence Agreement to enforce Harold Thomas' Copyright, which includes issuing cease and desist notices," a spokeswoman for the company said.

Mr Thomas said it was his "common law right" to choose who he enters licensing agreements with.

Wiradjuri artist Lani Balzan designed the NRL's St George Illawarra Indigenous jersey for four years.

She said it was a disappointing development and will make her reconsider her designs for the football club and other institutions in the future.

"Schools, when they buy their uniforms through me, we put the Torres Strait and the Aboriginal flag on both shoulders, so I don't know if we will be allowed to do that anymore," she said.

"It's not just the flag, it's what represents them and our culture and who we are, to have some non-Indigenous company get copyright, it's really upsetting.

"It's disappointing because it's coming down to money and the flag doesn't represent money, it represents us as Aboriginal people, and our culture and who we are."

Conduct of WAM director's former business 'unacceptable'

One of the directors of WAM Clothing, Benjamin Wooster, is the former owner of the now defunct Birubi Arts, a company taken to court over its production of fake Aboriginal art.

In October last year, the Federal Court found Birubi Arts was misleading customers to believe its products were genuine, when in fact they were produced and painted in Indonesia.

At the time, the Australian Competition and Consumer Commission said Birubi's conduct was "unacceptable".

Weeks later Birubi Arts ceased operating, and the next month the director and a new partner opened a new business, WAM Clothing.

Birubi Arts company sold more than 18,000 fake boomerangs, bullroarers, didgeridoos and message stones to retail outlets around Australia between July 2017 to November 2017.

The case is due before court again this week, for a penalty hearing, which some lawyers expect could see a hefty fine handed down that could run into the millions.

The company is now in the hands of liquidators, and the ABC understands it "doesn't have any capacity" to pay further debts.

The director of WAM Clothing is also in charge of another company, Giftsmate, which has the exclusive licence with Mr Thomas to reproduce objects with the Aboriginal flag on it.

Mr Thomas reiterated his support for all the companies he worked with.

"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," Mr Thomas said.

"I have done this with Carroll & Richardson [flag licensee], Gifts Mate and the many approvals I've given to [other] Aboriginal and Non-Aboriginal organisations."

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Clothing rights to Aboriginal flag secured by non-Indigenous business

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Australia's major football codes have been drawn into a conflict over the copyright of the Aboriginal flag, after a non-Indigenous company secured exclusive clothing rights to the flag.

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The Aboriginal Flag is a symbol that represents all Aboriginal people. It is one of the official flags of Australia, and holds special legal and political status. On the 14th of July 1995, the Governor General of Australia William Hayden proclaimed both the Aboriginal Flag and the Torres Strait Islander Flag to be 'Flags of Australia.'

The Aboriginal Flag

On the 12th of July 1971, the Australian Aboriginal flag was flown for the first time on National Aborigines Day in Victoria Square, Adelaide, South Australia. Since then, it has become a recognised symbol for all Aboriginal people.

Designed and created by artist and activist, Harold Thomas, a Luritja man from central Australia and a member of the Stolen Generations, who created the flag in response to the questions of personal and cultural identity.

I've got a symbol that represents me and who I am, whether I live in Redfern or Adelaide or Perth, I'm proud of it.
- Harold Thomas

The design of the Aboriginal Flag

The design of the Aboriginal flag represents the following:

The red represents the land which nourishes the people

The yellow represents the life-giving sun

The black represents the Aboriginal people of Australia and the pride that comes in being black.

Learn more

Listen to the interview with flag creator Harold Thomas as he recounts how he came to create the Aboriginal Flag(Source: ABC Radio Darwin. Interview with Miranda Tetlow)

Here is a short video explaining the origins and meaning of the Aboriginal Flag (Source: SBS On-Demand)

The Torres Strait Islander Flag

At the 6th Torres Strait Cultural Festival on the 29th of May, 1992, the new Torres Strait Islander flag was presented to the people of the Torres Strait Islands. The design of the flag was the winning entry by the late Bernard Namok in a competition held as part of a cultural revival workshop organised by The Islands Coordinating Council in January 1992.

Bernard's son, Bernard Namok Jr recalls how his father worked on the design of the flag:

I remember my dad sitting up late doing sketches. Night after night the dinner table would be filled with his sketches of the flag.
- Bernard Namok Jr.

The design of the Torres Strait Islander Flag

The design of the Torres Strait Islander flag represents the following:

The green panels at the top and the bottom of the flag symbolise the land

The blue panel in the centre represents the waters of the Torres Strait

The thin black stripes between the green and blue panels signify the Torres Strait Islanders themselves

The white five-pointed star at the centre of the flag represents the five major island groups, and the white dhari (dancer's headdress) around it also symbolises the Torres Strait Islands people

White symbolises peace, while the star is a symbol for navigation

Activities

Listen to the interview with Bernard's son, Bernard Namok Jr. as he pays tribute to this father.

Watch the documentary 'Carry The Flag' - a rich and powerful story of a man whose design created meaning for a people once invisible to people of mainland Australia, the people of the Torres Strait. (Source: SBS On-Demand)

Sources

Activities for Children

Remember!

Harold Thomas designed and created the Aboriginal Flag in response to questions of personal and cultural identity.

Aboriginal and Torres Strait Islander people should be aware that this website may contain images, voices or names of deceased persons in photographs, film, audio recordings or printed material. To listen to our Acknowledgement of Country, click here.

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The Aboriginal Flag is a symbol that represents all Aboriginal people. It is one of the official flags of Australia, and holds special legal and political status. On the 14th of July 1995, the Governor General of Australia William Hayden proclaimed both the Aboriginal Flag and the Torres Strait Islander Flag to be 'Flags of Australia.'

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The Aboriginal flag has recently featured in the media spotlight as being subject to copyright and not free for public use. In light of this, we have provided a step-by-step guide on how to seek permission for the use of an image with reference to the Aboriginal flag.

In this information sheet:

Steps to take to get permission to use an image.

Step 1

Does the image you wish to use need permission?
Before you begin to seek permission to use an image such as the Aboriginal flag, it is important to consider whether the image is in the public domain and free for everyone to use as well as whether your use specific use of the image would need permission.

The Aboriginal flag is not in the public domain and the copyright owner must be approached for its use.

Step 2

Who is the owner or holds copyright in the image?
You must seek permission for the use of an image from the actual owner of the copyright. This can often be difficult if there are multiple people who have contributed to the work.

The owner of the Aboriginal flag is Harold Thomas and it is subject to copyright.

Step 3
What are the rights that you require?

Do you require and exclusive or non-exclusive license?

All exclusive licences must be in writing and signed under the Copyright Act 1968.

If you wish to reproduce, publish or communicate and image then you require permission from the copyright owner.

The Aboriginal flag is currently licenced to three companies for exclusive use:

WAM Clothing for the right to reproduce the Aboriginal flag on clothing.

Gifts Mate for the right to reproduce the Aboriginal flag on merchandise.

Carroll & Richardson -Flagworld for the right to reproduce the Aboriginal flag as a flag.

Step 4
Send a request for permission to use the material and negotiate with the owner.
Once you have established what you wish to do with the image and who you need to seek permission from, make contact with them.

Mr Harold Thomas
PO Box 41807
Casuarina NT 0810
This is the stated postal address for Harold Thomas.

Step 5
Get the permission in the form of an agreement or in writing.
Not only do you legally require permission signed and in writing for an exclusive licence under the Copyright Act 1968, but it is also important to enforce both parties rights. If the rights of each party is in writing it is harder for parties to be unclear about the agreement.

Need more help?

If you have questions about any of the topics discussed above please contact Arts Law.

Disclaimer

The information in this information sheet is general. It does not constitute, and should be not relied on as, legal advice. The Arts Law Centre of Australia (Arts Law) recommends seeking advice from a qualified lawyer on the legal issues affecting you before acting on any legal matter.

While Arts Law tries to ensure that the content of this information sheet is accurate, adequate or complete, it does not represent or warrant its accuracy, adequacy or completeness. Arts Law is not responsible for any loss suffered as a result of or in relation to the use of this information sheet. To the extent permitted by law, Arts Law excludes any liability, including any liability for negligence, for any loss, including indirect or consequential damages arising from or in relation to the use of this information sheet.

© Arts Law Centre of Australia

You may photocopy this information sheet for a non-profit purpose, provided you copy all of it, and you do not alter it in any way. Check you have the most recent version by contacting us on (02) 9356 2566 or tollfree outside Sydney on 1800 221 457.

The Arts Law Centre of Australia has been assisted by the Commonwealth Government through the Australia Council, its arts funding and advisory body.

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Permission to use an image (eg. The Aboriginal Flag) - Arts Law Centre of Australia

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The Aboriginal flag has recently featured in the media spotlight as being subject to copyright and not free for public use. In light of this, we have provided a step-by-step guide on how to seek permission for the use of an image with reference to the Aboriginal flag.

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Italian

I design di Clothing sono audaci, creativi e unicamente aborigeni.

Tutti i profitti dalle vendite dei cappellini, felpe e magliette che mostrano la bandiera aborigena vanno a finire in programmi che promuovono questioni sanitarie nelle comunità indigene.

Si tratta di un'iniziativa di Spark Health Australia, e gli affari andavano a gonfie vele fino a quando la fondatrice Laura Thompson ha ricevuto la scorsa settimana una lettera di diffida, che intimava di cessare l'utilizzo della bandiera aborigena.
"I've always been a bit nervous about using the flag and whenever I've seen the flag in the community, I thought should we? We've always struggled as Aboriginal people, I didn't think we'd have to struggle to use the flag."
La lettera proveniva da un'azienda chiamata WAM Clothing, che afferma di essere in possesso di una licenza esclusiva mondiale sull'utilizzo della bandiera aborigena su capi d'abbigliamento.

Thompson ha dichiarato che una organizzazione non indigena non dovrebbe essere la titolare di diritti commerciali sulla bandiera aborigena.
"It's bizarre that a non-Indigenous company is controlling an Aboriginal flag, that I have to ask permission off a non-Indigenous person if I can share and celebrate my identity."
Thompson ha affermato di aver cercato di contattare l'ideatore originario della bandiera, Harold Thomas, ma di non aver ricevuto risposta.

L'artista della popolazione Luritja dapprima realizzo la bandiera nel 1971, e ottenne i diritti nel 1997 da un tribunale federale dopo una disputa su chi fosse l'autore del design originale.

L'avvocato Mark Williams ha dichiarato che originariamente la questione dei diritti venne messa in discussione per proteggere la bandiera e non come un mezzo per fare soldi.
"The evidence is that originally he really just wanted a flag to join all the other flags that were campaigning for land rights and Aboriginal people, there are 600 Aboriginal nations or thereabouts, so one unifying idea was really a modern idea."
L'anno scorso WAM Clothing ha ottenuto la licenza esclusiva per riprodurre la bandiera su capi d'abbigliamento, e da allora ha inviato lettere di diffida a chi riproduce l'immagine senza permesso.

In una dichiarazione a SBS, l'azienda ha dichiarato:
"WAM Clothing ha il dovere, previsto nel suo contratto di licenza, di imporre il copyright di Harold Thomas; i passi necessari per imporlo variano da caso a caso".
E che "tutte le corrispondenze includono l'invito diretto alle organizzazioni a contattare WAM Clothing in relazione all'uso della bandiera."

SBS è venuta a conoscenza che le leghe di football AFL e la NRL hanno ricevuto anch'esse lettere di diffida sull'utilizzo della bandiera nelle magliatte dedicata all'Indigenous round, le partite in onore degli indigeni.

Un portavoce della NRL ha reso noto che l'organizzazione è al corrente dell'avviso, ma si è rifiutato di fornire ulteriori commenti.

Spark Health ha fino alla mezzanotte di mercoledì per vendere gli ultimi pezzi di merchandise con la bandiera aborigena, e sebbene abbiano dichiarato di voler rispettare le leggi sul copyright, hanno inoltre sottolineato che la schermaglia legale ha messo alla luce domande importanti su chi debba possedere la bandiera aborigena.
"This is not about Clothing the Gap selling flag clothing any more, this is about everyone being able to access the flag and use it the way they want, respectfully."
English

Clothing the Gap designs are bold, creative and uniquely Aboriginal.

All profits from the sale of its beanies, hoodies and t-shirts that feature the Aboriginal flag are filtered into health promotion programs in Indigenous communities across Victoria.

It's the initiative of Spark Health Australia, and business had been booming until founder Laura Thompson received a "cease and desist" letter last week, ordering her to stop using the Aboriginal flag in her designs.
"I've always been a bit nervous about using the flag and whenever I've seen the flag in the community, I thought should we? We've always struggled as Aboriginal people, I didn't think we'd have to struggle to use the flag."
The letter was from a company called WAM Clothing, purporting to be the exclusive worldwide licensee for the Aboriginal flag on clothing.

Ms Thompson says she doesn't believe a non-Indigenous organisation should hold licensing rights over the Aboriginal flag.
"It's bizarre that a non-Indigenous company is controlling an Aboriginal flag, that I have to ask permission off a non-Indigenous person if I can share and celebrate my identity."
Ms Thompson says she had tried to contact the original designer of the flag, Harold Thomas, but received no reply.

The Luritja artist first made the flag in 1971, and was granted copyright in 1997 by the federal court after a dispute over who was behind the original design.

Barrister Dr Mark Williams says originally the copyright was sought to protect the flag, not as a money-making venture.
"The evidence is that originally he really just wanted a flag to join all the other flags that were campaigning for land rights and Aboriginal people, there are 600 Aboriginal nations or thereabouts, so one unifying idea was really a modern idea".
Last year WAM Clothing obtained the exclusive licence to reproduce the flag on clothing, and has since issued "cease and desist" notices to those reproducing the image without permission.

In a statement to SBS it said:
"WAM Clothing has obligations under its Licence Agreement to enforce Harold Thomas' Copyright, steps required to enforce vary on a case-by-case basis."
And that "all correspondence includes the direct invitation for organisations to contact WAM Clothing with respect to the use of the Flag."

SBS understands that the AFL and NRL football leagues have also received letters over the use of the flag on their Indigenous round jerseys.

A spokesman for the NRL says the organisation is aware of the notices, but he declined to comment further.

Spark Health has until midnight Wednesday to sell the last of its merchandise featuring the Aboriginal flag, and while it says it's happy to comply with copyright laws, it says the stoush has raised some important questions on who should own the Aboriginal flag.
"This is not about Clothing the Gap selling flag clothing any more, this is about everyone being able to access the flag and use it the way they want, respectfully."
Report by Abby Dinham

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Episode 92: Copyright Row over Aboriginal Flag

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I design di Clothing sono audaci, creativi e unicamente aborigeni. Tutti i profitti dalle vendite dei cappellini, felpe e magliette che mostrano la bandiera aborigena vanno a finire in programmi che promuovono questioni sanitarie nelle comunità indigene.

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Reports that two Aboriginal-owned businesses and the AFL have received cease and desist warnings over their use of the Aboriginal flag on clothing have left many Australians surprised and confused.

A company called WAM Clothing, not owned by Indigenous Australians, currently has exclusive rights to use the flag on clothing. It has issued cease and desist notices to companies including the AFL (which uses the flag on club jerseys for its Indigenous round) and Spark Health, an Indigenous social enterprise. The latter has launched an online petition calling for the copyright arrangements to be changed.

While there is no need for anyone to get permission to use the Australian flag, so long as they abide by the guidelines respecting its use, this is not the case for the Aboriginal flag.

The reason is that the Aboriginal flag is a copyright work owned by the artist who created it over 40 years ago - Luritja man Harold Thomas.

Thomas created the flag for a national Indigenous day in July 1971, and this is not the first time his flag has been embroiled in copyright controversy.

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. Thomas was successful in establishing his claim to authorship before the Federal Court in 1997.

As the creator of the flag, Thomas is its owner and can grant licences to other parties to make copies of the flag, or indeed refuse its use altogether.

Under Australian law, his copyright will last for 70 years after his death, and can be claimed by his heirs or anyone else to whom he might choose to assign it. Thomas can assert his rights against anyone making any copy of the flag, even if they are not selling it or using it commercially - this could even include bringing an action against someone with a tattoo of the flag.

Following the Federal Court decision in 1997, Thomas granted a licence to a company called Flags 2000, giving that company the right to reproduce and manufacture the flag. In 2003, Flags 2000 and Thomas brought a successful action against a man named Mr Smith, who had made and sold copies of the flag without permission.

Copyright and Aboriginal art

Today, the licence to use the flag on items of clothing is held by WAM Clothing. This was granted by Thomas in October 2018.

One of the owners of WAM Clothing, Ben Wooster, is also the director of a company called Birubi Art. Last year, the Australian Competition and Consumer Commission brought legal proceedings against Birubi for its production and sales of boomerang and other souvenir products featuring visual images and symbols of Aboriginal art, all of which were produced by artisans in Indonesia.

The Federal Court found that by representing these works as hand painted or made by Aboriginal Australians, Birubi had engaged in misleading and deceptive conduct. A hearing on the penalties and orders against the company will be held this Friday, but it is already in liquidation, which could limit the impact of any orders.

A recent report of the Australian Parliament's Standing Committee on Indigenous Affairs identified the harms caused to Indigenous peoples and communities by inauthentic souvenirs and crafts with no connection to the Aboriginal peoples whose stories, histories and culture they depict.

Together, these issues highlight the difficulties faced by Aboriginal artists in this field. Many people still erroneously believe that traditional styles of painting are not capable of being owned under copyright law. A number of Aboriginal artists have resorted to litigation to prevent use of their designs on an array of commercial products, from currency to carpets.

What about the petition?

A change.org petition started by Spark Health, whose brand Clothing the Gap raises money for Aboriginal health, states: "This is not a question of who owns copyright of the Flag. This is a question of control."

However, the two cannot be separated: it is the owner of the copyright who has control over how a work may be used.

As copyright owner, Thomas has the right to grant licences to whomever he pleases, whether Indigenous or not.

A former head of the Australian Copyright Council Fiona Phillips has said there could be an argument for the Government to buy back the copyright licence from Thomas. But could this work?

Asking the government to intervene in this way could be seen as yet another appropriation of Aboriginal property rights - in this case, the rights of an artist to maintain ownership of his work.

At the same time, enforcing copyright of such a powerful and well-loved symbol against those seeking to use it to express their cultural identity, solidarity or sympathy, or for charitable causes, gives rise to justifiable resentment.

The symbolism of the flag, expressed by Thomas in the original 1997 court case, is worth remembering here:

I wanted to make it unsettling. In normal circumstances you'd have the darker colour at the bottom and the lighter colour on top and that would be visibly appropriate for anybody looking at it. It wouldn't unsettle you. To give a shock to the viewer to have it on top had a dual purpose, was to unsettle ... The other factor why I had it on top was the Aboriginal people walk on top of the land. (Thomas v Brown (1997) 37 IPR 207, 214.)

Following recent recommendations for reform from the Australian Law Reform Commission and the Productivity Commission, it could be that this case gives impetus for the government to explore ways to make copyright fairer for both artists and users.
Isabella Alexander, Professor of Law, University of Technology Sydney Isabella Alexander does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.

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Explained: Australian copyright laws and the Aboriginal flag

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Reports that two Aboriginal-owned businesses and the AFL have received cease and desist warnings over their use of the Aboriginal flag on clothing have left many Australians surprised and confused. A company called WAM Clothing, not owned by Indigenous Australians, currently has exclusive rights to use the flag on clothing.

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A decision to ban the Aboriginal flag and other forms of recognition from Anzac Day services in Western Australia (WA) has sparked widespread backlash.

Each year, solemn ceremonies are held on 25 April in Australia and New Zealand to commemorate veterans and soldiers.

But a veterans' organisation said it would no longer allow Aboriginal displays at its services in the state.

It added that all content, except the NZ anthem, must be in English.

The Returned Service League (RSL) has previously been criticised for ignoring and diminishing the service of Aboriginal soldiers in World War One and other conflicts.

The decision follows a move last year where the Ode of Remembrance was read at a ceremony in an Aboriginal language, the Australian Broadcasting Corporation reported.

Critics, among them indigenous and non-indigenous lawmakers, have called the move "offensive" and demanded it be reversed.

Australia and New Zealand mark Anzac Day

The new policy for the state's RSL also prohibits Welcome to Country and Acknowledgement of Country ceremonies - which have become commonplace around Australia.

The brief protocols acknowledge indigenous connection to the land, and are commonly read out or performed at the commencement of a formal gathering or event.

However, the RSLWA said such gestures at Anzac Day or Remembrance Day ceremonies would be inappropriate.

"While having utmost respect for the traditional owners of land upon which such sites and memorials are located, RSLWA does not view it appropriate that a Welcome to Country is used at sites that were specifically established to pay homage to those who died and who came from a wide range of cultural backgrounds," their policy reads.

Anzac Day has become a flashpoint for controversy in Australia in recent years, and sparked debates on national identity.

Critics say the "Anzac" legend, which focuses on Australia and New Zealand's campaign at Gallipoli in World War One, prioritises a white-Anglo narrative and glorifies a battle where many Allied soldiers died.

Australia's first Aboriginal cabinet minister

Australia admits failings on indigenous equality

According to the Australian War Memorial, at least 1,000 indigenous Australians are recorded to have fought for their nation in WW1, and "the real number is probably higher".

"It is not known what motivated Indigenous Australians to join the Australian Imperial Force (AIF), but loyalty and patriotism doubtless played a part," says the memorial's website.

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Outcry over Aboriginal flag ban at Anzac services

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A decision to ban the Aboriginal flag and other forms of recognition from Anzac Day services in Western Australia (WA) has sparked widespread backlash. Each year, solemn ceremonies are held on 25 April in Australia and New Zealand to commemorate veterans and soldiers.

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The non-Indigenous company that controls how the Aboriginal flag is used on clothing has refused to define publicly the extent of its licences, leaving Indigenous health, legal and other non-profit organisations in the dark about whether they are exempt from fees.

The company, Wam Clothing, has extended its licensing agreement with the designer, Harold Thomas, to include "digital and physical media".

But because the deal is confidential, it is increasingly unclear whether anyone who now uses the symbol will have to pay a fee.

In a statement the company said "any exemption is at the discretion of Wam Clothing".

"Any organisations who wish to understand what Wam Clothing's licences include, are invited to contact us."
Indigenous charity forced to pay $2,200 to use Aboriginal flag on T-shirts
In August, Wam Clothing charged the Indigenous Wellbeing Centre in Bundaberg $2,200 to use the flag on T-shirts it had given to patients who came into the clinic for a preventive health check.

The IWC, which is an Aboriginal non-profit health organisation, initially sought a discount because it was an Indigenous charity. It later demanded its money back and sought clarification that it could use the flag "into the future without payment of royalties".

Wam Clothing would not agree to a refund "as requested and reiterate that if you wish to use the Aboriginal Flag on clothing, we will arrange permission with you on the terms previously offered".

It had calculated the fee at 20% of the cost price of the batch of T-shirts the IWC had already given out. In correspondence, Wam said 20% was "a flat percentage applied across the board".

"I almost fell off my chair when they said 20%," IWC's Janette Young said. "I thought they'd say, 'OK, you're a charity.' I thought they'd give us an exemption."

Wam Clothing offered to reduce the fee to 15%, while also asking the charity to sign a confidentiality agreement.

But the IWC calculated that continuing to use the design would cost it between $8,000 and $10,000 a year. Instead it paid the fee and has since removed the flag from the T-shirts itoffers.

A spokesperson for Wam Clothing said the IWC had asked for a discount not an exemption.

A copy of a 2018 agreement which appears to be between Wam Clothing and Harold Thomas, seen by Guardian Australia, noted the design may be used by Aboriginal people for non-profit purposes.

According to the document, signed in November, Thomas received a one-off payment from Wam Clothing and was entitled to a royalty on any items Wam sold featuring his design.

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Wam Clothing has said the terms of any licence agreements are confidential and legally privileged and only for the benefit of the parties to that agreement. They said the documents seen by Guardian Australia may have been fraudulently created.

It now says it is the "exclusive worldwide licensee for the use of the Aboriginal flag on digital media and physical media".

In mid-August, the company issued a "cease and desist" notice to the creator of a Facebook discussion page called "New Aboriginal flag or flags discussion" because its "use of the digital image of the Aboriginal flag on social media platforms are [sic] being used in a negative light".

This month the Senate passed a motion calling on the government to do all it could to "ensure that all First Nations peoples and communities can use the flag whenever they want without cost or the need for consent".

Wam Clothing and Harold Thomas declined to comment further.

Topics

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Indigenous charities left in the dark over fees to use Aboriginal flag on clothing

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The non-Indigenous company that controls how the Aboriginal flag is used on clothing has refused to define publicly the extent of its licences, leaving Indigenous health, legal and other non-profit organisations in the dark about whether they are exempt from fees.

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Accessed 29 May 2020

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The Aboriginal flag has recently featured in the media spotlight as being subject to copyright and not free for public use. In light of this, we have provided a step-by-step guide on how to seek permission for the use of an image with reference to the Aboriginal flag.

In this information sheet:

Steps to take to get permission to use an image.

Step 1

Does the image you wish to use need permission?
Before you begin to seek permission to use an image such as the Aboriginal flag, it is important to consider whether the image is in the public domain and free for everyone to use as well as whether your use specific use of the image would need permission.

The Aboriginal flag is not in the public domain and the copyright owner must be approached for its use.

Step 2

Who is the owner or holds copyright in the image?
You must seek permission for the use of an image from the actual owner of the copyright. This can often be difficult if there are multiple people who have contributed to the work.

The owner of the Aboriginal flag is Harold Thomas and it is subject to copyright.

Step 3
What are the rights that you require?

Do you require and exclusive or non-exclusive license?

All exclusive licences must be in writing and signed under the Copyright Act 1968.

If you wish to reproduce, publish or communicate and image then you require permission from the copyright owner.

The Aboriginal flag is currently licenced to three companies for exclusive use:

WAM Clothing for the right to reproduce the Aboriginal flag on clothing.

Gifts Mate for the right to reproduce the Aboriginal flag on merchandise.

Carroll & Richardson -Flagworld for the right to reproduce the Aboriginal flag as a flag.

Step 4
Send a request for permission to use the material and negotiate with the owner.
Once you have established what you wish to do with the image and who you need to seek permission from, make contact with them.

Mr Harold Thomas
PO Box 41807
Casuarina NT 0810
This is the stated postal address for Harold Thomas.

Step 5
Get the permission in the form of an agreement or in writing.
Not only do you legally require permission signed and in writing for an exclusive licence under the Copyright Act 1968, but it is also important to enforce both parties rights. If the rights of each party is in writing it is harder for parties to be unclear about the agreement.

Need more help?

If you have questions about any of the topics discussed above please contact Arts Law.

Disclaimer

The information in this information sheet is general. It does not constitute, and should be not relied on as, legal advice. The Arts Law Centre of Australia (Arts Law) recommends seeking advice from a qualified lawyer on the legal issues affecting you before acting on any legal matter.

While Arts Law tries to ensure that the content of this information sheet is accurate, adequate or complete, it does not represent or warrant its accuracy, adequacy or completeness. Arts Law is not responsible for any loss suffered as a result of or in relation to the use of this information sheet. To the extent permitted by law, Arts Law excludes any liability, including any liability for negligence, for any loss, including indirect or consequential damages arising from or in relation to the use of this information sheet.

© Arts Law Centre of Australia

You may photocopy this information sheet for a non-profit purpose, provided you copy all of it, and you do not alter it in any way. Check you have the most recent version by contacting us on (02) 9356 2566 or tollfree outside Sydney on 1800 221 457.

The Arts Law Centre of Australia has been assisted by the Commonwealth Government through the Australia Council, its arts funding and advisory body.

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Permission to use an image (eg. The Aboriginal Flag) - Arts Law Centre of Australia

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The Aboriginal flag has recently featured in the media spotlight as being subject to copyright and not free for public use. In light of this, we have provided a step-by-step guide on how to seek permission for the use of an image with reference to the Aboriginal flag.

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An Australian company which holds the rights to reproduce the Aboriginal flag design on flags and banners is a step closer to suing the seller of a reworked flag for alleged copyright infringement, after the Federal Court made orders to help unmask the owners of a website called "Free the Flag".

The Aboriginal flag is recognised under Commonwealth law as "the flag of the Aboriginal peoples of Australia and a flag of significance to the Australian nation generally", but copyright of the design is held by Indigenous artist and land rights activist Harold Thomas and he must approve its use.

Indigenous artist Harold Thomas holds the copyright for the design of the Aboriginal flag and must approve its use. Credit:Greg Newington

There has been a push in recent years for the government to acquire the copyright from Mr Thomas but it has not taken steps to do so.

In 1998 Mr Thomas granted a Victorian-based flag manufacturer, Carroll & Richardson Flagworld, an exclusive licence to reproduce his design on "flags, pennants, banners and bunting".

The company is now seeking to sue the operators of the Free the Flag website for alleged copyright infringement for selling flags featuring a reworked version of the Aboriginal flag with a solid yellow outline of Australia in the middle instead of a yellow circle. One of the flags features the words "Free the Flag" in the centre.

One of the flags offered for sale by the operators of the Free the Flag website. Credit:Federal Court

Separately, Flagworld is seeking to sue a Queensland-based company called Nichoff Inc for copyright infringement for allegedly selling flags on eBay featuring Mr Thomas' design with no changes.

Paypal Australia, Vodafone and eBay have already agreed to hand over information to Flagworld to help it track down the people behind Free the Flag and Nichoff Inc.

On Thursday, Federal Court Justice Bernard Murphy ordered online shopping platform Shopify Australia to produce to Flagworld the "name, email address, postal address, and any other address" linked to the operators of the Free the Flag website.

"I am satisfied that Flagworld may have a right to obtain relief for breach of copyright against the prospective respondent(s), being the persons or entities operating the Free The Flag website," Justice Murphy said.

He said it was "undesirable" before copyright infringement proceedings were even launched to "express any firm view about the prospects of Flagworld's intended action for copyright infringement".

"The [flags sold by Free the Flag] ... are not the same as the Aboriginal flag, but that does not show that Flagworld may not have a right to obtain relief," he said.

Justice Murphy ordered Australia Post to provide the same information to Flagworld to help it identify the operators of the eBay accounts linked to Nichoff Inc, which was allegedly selling Aboriginal flags.

The court heard a solicitor for Flagworld had made a "trap purchase" from the Free the Flag website and the company engaged a private investigator to help unmask the operator of the site.

A Flagworld manager also bought Aboriginal flags from two eBay sellers linked to Nichoff Inc.

Queensland-based WAM Clothing holds the rights to reproduce the flag design on clothing and has also taken legal action against retailers.

Michaela Whitbourn is a legal affairs reporter at The Sydney Morning Herald.

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Copyright fight brews over sale of Aboriginal flags

# data[].attributes.attachment_link.description
Normal text size Larger text size Very large text size An Australian company which holds the rights to reproduce the Aboriginal flag design on flags and banners is a step closer to suing the seller of a reworked flag for alleged copyright infringement, after the Federal Court made orders to help unmask the owners of a website called "Free the Flag".

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Copyright fight brews over sale of Aboriginal flags.

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Normal text size Larger text size Very large text size

An Australian company which holds the rights to reproduce the Aboriginal flag design on flags and banners is a step closer to suing the seller of a reworked flag for alleged copyright infringement, after the Federal Court made orders to help unmask the owners of a website called "Free the Flag".

The Aboriginal flag is recognised under Commonwealth law as "the flag of the Aboriginal peoples of Australia and a flag of significance to the Australian nation generally", but copyright of the design is held by Indigenous artist and land rights activist Harold Thomas and he must approve its use.

Indigenous artist Harold Thomas holds the copyright for the design of the Aboriginal flag and must approve its use. Credit:Greg Newington

There has been a push in recent years for the government to acquire the copyright from Mr Thomas but it has not taken steps to do so.

In 1998 Mr Thomas granted a Victorian-based flag manufacturer, Carroll & Richardson Flagworld, an exclusive licence to reproduce his design on "flags, pennants, banners and bunting".

The company is now seeking to sue the operators of the Free the Flag website for alleged copyright infringement for selling flags featuring a reworked version of the Aboriginal flag with a solid yellow outline of Australia in the middle instead of a yellow circle. One of the flags features the words "Free the Flag" in the centre.

One of the flags offered for sale by the operators of the Free the Flag website. Credit:Federal Court

Separately, Flagworld is seeking to sue a Queensland-based company called Nichoff Inc for copyright infringement for allegedly selling flags on eBay featuring Mr Thomas' design with no changes.

Paypal Australia, Vodafone and eBay have already agreed to hand over information to Flagworld to help it track down the people behind Free the Flag and Nichoff Inc.

On Thursday, Federal Court Justice Bernard Murphy ordered online shopping platform Shopify Australia to produce to Flagworld the "name, email address, postal address, and any other address" linked to the operators of the Free the Flag website.

"I am satisfied that Flagworld may have a right to obtain relief for breach of copyright against the prospective respondent(s), being the persons or entities operating the Free The Flag website," Justice Murphy said.

He said it was "undesirable" before copyright infringement proceedings were even launched to "express any firm view about the prospects of Flagworld's intended action for copyright infringement".

"The [flags sold by Free the Flag] ... are not the same as the Aboriginal flag, but that does not show that Flagworld may not have a right to obtain relief," he said.

Justice Murphy ordered Australia Post to provide the same information to Flagworld to help it identify the operators of the eBay accounts linked to Nichoff Inc, which was allegedly selling Aboriginal flags.

The court heard a solicitor for Flagworld had made a "trap purchase" from the Free the Flag website and the company engaged a private investigator to help unmask the operator of the site.

A Flagworld manager also bought Aboriginal flags from two eBay sellers linked to Nichoff Inc.

Queensland-based WAM Clothing holds the rights to reproduce the flag design on clothing and has also taken legal action against retailers.

Michaela Whitbourn is a legal affairs reporter at The Sydney Morning Herald.

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Copyright fight brews over sale of Aboriginal flags

# data[].attributes.attachment_link.description
Normal text size Larger text size Very large text size An Australian company which holds the rights to reproduce the Aboriginal flag design on flags and banners is a step closer to suing the seller of a reworked flag for alleged copyright infringement, after the Federal Court made orders to help unmask the owners of a website called "Free the Flag".

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Aboriginal flag row in Western Australia.

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A decision to ban the Aboriginal flag and other forms of recognition from Anzac Day services in Western Australia (WA) has sparked widespread backlash.

Each year, solemn ceremonies are held on 25 April in Australia and New Zealand to commemorate veterans and soldiers.

But a veterans' organisation said it would no longer allow Aboriginal displays at its services in the state.

It added that all content, except the NZ anthem, must be in English.

The Returned Service League (RSL) has previously been criticised for ignoring and diminishing the service of Aboriginal soldiers in World War One and other conflicts.

The decision follows a move last year where the Ode of Remembrance was read at a ceremony in an Aboriginal language, the Australian Broadcasting Corporation reported.

Critics, among them indigenous and non-indigenous lawmakers, have called the move "offensive" and demanded it be reversed.

Australia and New Zealand mark Anzac Day

The new policy for the state's RSL also prohibits Welcome to Country and Acknowledgement of Country ceremonies - which have become commonplace around Australia.

The brief protocols acknowledge indigenous connection to the land, and are commonly read out or performed at the commencement of a formal gathering or event.

However, the RSLWA said such gestures at Anzac Day or Remembrance Day ceremonies would be inappropriate.

"While having utmost respect for the traditional owners of land upon which such sites and memorials are located, RSLWA does not view it appropriate that a Welcome to Country is used at sites that were specifically established to pay homage to those who died and who came from a wide range of cultural backgrounds," their policy reads.

Anzac Day has become a flashpoint for controversy in Australia in recent years, and sparked debates on national identity.

Critics say the "Anzac" legend, which focuses on Australia and New Zealand's campaign at Gallipoli in World War One, prioritises a white-Anglo narrative and glorifies a battle where many Allied soldiers died.

Australia's first Aboriginal cabinet minister

Australia admits failings on indigenous equality

According to the Australian War Memorial, at least 1,000 indigenous Australians are recorded to have fought for their nation in WW1, and "the real number is probably higher".

"It is not known what motivated Indigenous Australians to join the Australian Imperial Force (AIF), but loyalty and patriotism doubtless played a part," says the memorial's website.

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Outcry over Aboriginal flag ban at Anzac services

# data[].attributes.attachment_link.description
A decision to ban the Aboriginal flag and other forms of recognition from Anzac Day services in Western Australia (WA) has sparked widespread backlash. Each year, solemn ceremonies are held on 25 April in Australia and New Zealand to commemorate veterans and soldiers.