Aboriginal Flag free in $20 million copyright deal

The Australian Government has been assigned copyright in the Aboriginal Flag as part of a $20 million deal to purchase the rights from its creator, paving the way for its use without permission or the payment of a fee.

Luritja artist and activist Harold Thomas designed the flag, which has become a symbol of Aboriginal solidarity and pride in 1971.  Despite being declared as a Flag of Australia under the Flags Act in 1995, Mr Thomas retained copyright in the flag as the author of an artistic work under the Copyright Act 1968 (Cth).

As the copyright holder, Mr Thomas held a number of rights including the exclusive right to reproduce the flag and authorise its reproduction.  This meant that any party wishing to reproduce the flag had to seek a licence to do so from Mr Thomas and possibly pay a fee. 

The Aboriginal Flag will now be managed in a similar manner to the Australian National Flag, where its reproduction is free but must be presented in a respectful and dignified way, the Prime Minister Scott Morrison said.

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.

The ownership of the flag has been controversial.  In recent times, Mr Thomas had granted a licence to reproduce the flag on clothing to a non-indigenous company that had threatened various groups including reportedly the NRL and AFL with copyright infringement due to the unauthorised reproduction of the design. This spurred the Free the Flag campaign and a Senate Inquiry which recommended the Government negotiate with Mr Thomas to purchase the copyright in the flag rather than compulsorily acquire it under Section 51 (xxxi) of the Australian Constitution.

Under the deal struck, Carroll and Richardson Flagworld will remain the exclusive licensed manufacturer and providing of Aboriginal flags and bunting.

Mr Thomas, who will retain moral rights in the work, and his licensees were paid a total of $20.05 million to assign the copyright and end the licences.  All future royalties the Commonwealth receives from commercial flag sales will be directed to NAIDOC.   

Mr Thomas said the flag’s design was his dreaming story.

The Flag represents the timeless history of our land and our people’s time on it. It is an introspection and appreciation of who we are, he said. 

It draws from the history of our ancestors, our land, and our identity and will honour these well into the future.


Anita is a member of our trade marks team and has more than 10 years’ experience in trade mark clearance work, prosecution, oppositions and enforcement, both locally and internationally. She has also been involved in proceedings before the Australian Trade Marks Office and the Federal Court of Australia.