A non-aboriginal business has licensed the copyright on Australia's aboriginal flag, and are making copyright claims against aboriginal businesses

Originally published at: https://boingboing.net/2019/06/08/pridenotprofit.html

Intolerable. If the same situation held in the US then there would be only one supplier of Old Glory Banana Hammocks, and where would our Freedom of choice be then?


How can an official flag have any copyright? Shouldn’t it be public domain? Like the Pride flag? Any countries flag? State Flags? POW/MIA flag? Other historical flags like the Gadsden? etc.


This is a hard one. The flag was created by an Aboriginal artist who holds a legal copyright over his artwork. He monetized his work. As a non-aboriginal, I’m really wary of saying that in this case, white man’s legal protections don’t apply.

See https://www.naidoc.org.au/about/indigenous-australian-flags for more details.


A non-aboriginal business has licensed the copyright on Harold Thomas’s flag, and are making copyright claims against aboriginal businesses

-Fixed it for you


From what I can gather, it’s Thomas’s legally copyrighted artwork since he won the 1997 court case to assert his copyright.

Harold Thomas owns the copyright. WAM licenses it from him, though terms of licensing agreements can be as diverse as any contract. Your guess as to what the terms are in this case are as good as mine, though apparently Thomas does in fact allow its free use for non-commercial purposes, so WAM at most has a commercial license, and Thomas was involved in blocking Google for trying to use it commercially.

The Rainbow Flag was designed by Gilbert Baker. According to Baker’s friend Charles Beal, “He purposely never copyrighted the flag because he wanted it to be owned by everyone.”

In general, allowing a copyright to be revoked on the grounds of ubiquity or cultural significance would be a bad idea, as it would allow the arbitrary deprivation of artistic intellectual property by courts.

Spark health is a commercial business. They’re unhappy with how the artist chooses to license his work and want to use it, so they’re trying to take it.

I read the headline as was fully prepared to be outraged at the non-aboriginal business, but in this case it’s a bad take. Artists’ right to self-determination of their work is something I adamantly support, and screwing them out of it with a court, or trying to do so with a petition, most especially a disprivileged artist, is not okay.

This appears to be one of those rare cases where copyright is actually doing what it ought to.


The link you provided says they’re a ‘profit for purpose’ company. I suppose that’s a commercial business, in the same way as an Oxfam charity shop does try to make a profit from donated goods, to use those profits for a charitable purpose.

That’s not the impression I get from the petition site. They seem to want there to be a way for them to licence usage of the flag, but not to invalidate Thomas’s copyright.

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I think this strikes at the heart of the issue, which is that we tend to think of flags differently than other symbols. The idea that a flag can be copyrighted seems anathema, and that they should be able to be used by people who want to use them. Otherwise, is it really a flag? Yet, on the other hand, one of the things keeping non-aboriginal business from exploiting this design without payment or restriction is copyright. So, yeah, this does seem like copyright working like it is supposed to, protecting the artist and allowing him to profit from his work, regardless of whether that inconveniences someone who wants to use the design but can’t.

I’m still not sure, though if three colors with a circle at the center should be sufficient to be copyrighted, much as you can’t copyright book titles, or typefaces. It is distinctive. But I’m not much of a copyright maximalist.


They may be a wonderful company doing great things. My point is that they’re a commercial business and thus precluded from licensing the copyright by the license Thomas has with WAM.

Didn’t say they’re seeking to invalidate Thomas’s copyright. They’re trying to force the ability to license it despite the license Thomas sold WAM.


Nor am I. In fact, I favor comprehensive copyright reform, both nationally and internationally. Copyright law and intellectual property regimes in general are beyond fucked up. But I certainly don’t support forcing any artist to license their work to anyone they choose not to.

If in fact Harold Thomas expressed an interest in breaking his license with WAM, I would support that, because one of the reforms I support it a creator’s right to terminate a contract. Spark Health taking it, not so much.

Literally the only sympathy I have for this petition is that the flag has become a broader cultural symbol for aboriginal Australians, but that doesn’t and shouldn’t justify depriving the aboriginal artist who designed it of deciding who can use and/or license it from him, absolutely irrespective of whether I or anyone else agree with his choices.


No, my point was that (as I understand the term 'profit for purpose), they are a charity, which seeks to make a profit specifically for a predetermined objective.
The distinction (again, as I understand it) is that they’re not a normal commercial company, with shareholders, etc., which just happens to make charitable donations alongside a standard capitalist objective.

Whether a charity (of any variety) should be able to demand access to a copyrighted design is certainly a valid concern.

Er, thanks for the clarification. It sounded as if you were saying precisely that! :wink:


My general commenting on @Mister44’s comment on the copyrightability of flags was intended as separate from my comment on Spark Health’s objective here. But I can absolutely see why that was not clear. Apologies for the confusion. I’ve added the break my initial comment to clarify.


“Profit for purpose” companies are always hit or miss with me. For instance, some say 5% of profits go to X cause, while some say 5% of sales.

Okay. So, how much is your CEO making? How does your accounting work?

Yes, there’s good ones. But ultimately, they’re private companies with closed accounting, and we’re going on faith that they don’t use the “purpose” part as a sham.


Charity accounting transparency: yet another area of the law in dire need of comprehensive reform.


I’d be curious to understand more of the history on how this became the indigenous flag, and how (and why) Thomas got/kept the copyright.

I can understand using copyright to stop commercialization or exploitation, but in this case it’s being used in exactly the opposite way, and for the enrichment of just one person, Thomas. I don’t think that’s right. The flag should belong to the people, and benefit the people.


True! But the tax returns for a nonprofit can be found, which at least show a breakdown of management pay, who the principles on the board are, how much goes to mission goals, etc.

Profit for purpose is a TRUE blackbox the vast majority of the time, and my purchase from them is not tax deductible.


Which people, though? Should white folks be able to exploit another aboriginal creation with impunity, even against the will of the flag’s creator? The wiki on the flag notes that an anti-Islamic group, Reclaim Australia, used the flag. Thomas condemned that use, but AFIK can’t actually prevent them from using flags sold by licensed manufacturers in their bigoted rallies.


They wayback-linked article explains that Thomas got the copyright because he successfully had his creation of the design legally recognized; in a case he brought in response to the Australian federal government’s decision to make use of the design.

It doesn’t say if they made the decision because the provenance of the design wasn’t well known; or because they figured that the artist wasn’t in a position to do anything about it.

I’d agree that adopting a flag without ensuring its free usability is a terrible plan; but if you go and do it anyway objecting to the artist still exercising his copyright doesn’t feel like the principled position.


Fair 'nuf. I guess the correct solution here is for the people represented by this flag to just get a new design (one that isn’t copyrighted, or is at least copyrighted by an organization that represents their interests) and scrap the old one. That takes all the money away from Thomas and the corporation he sold the rights to.

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Just adopt a new flag. Then the copyright will be worthless. Problem solved!