Time for Midnight Oil to release Beds Are Burning 2 (Still Burning, You Guys).
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Given that both Thomas and at least some of the people at Spark Health are the people represented by this flag, why are Thomas’s actions not in his and their own interests as aboriginal Australians? I conclude you don’t believe they are since you say that doing so would…
Is it because he’s an individual and they’re a business? Is it because he chose to license it to a non-aboriginal business? Something else? And are you implying that Spark Health’s actions are more in both their and Thomas’s own interests as aboriginal Australians? In short, why is his own activism non-representative of his people, and especially why is it less representative than Spark Health’s activism?
Perhaps you know something I don’t, but I tend to be more sympathetic to an individual artist-activist profiting from representing his people than an activist-business doing so, but I admit part of that my reasonable distrust of for-profit company even if it’s mission is noble.
I can see the argument against an aboriginal (in this case Thomas) profiting from licensing the artwork to a non-aboriginal business, but it seems wrong to deny him that right simply because he’s aboriginal.
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I just don’t think a flag that represents a people should be under the control of any one person, or exist for the profit and benefit of that person. Thomas might be an activist and want the best for his people, but the profit from his art leads to corruption of that intent.
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I can also see the argument that a cultural symbol shouldn’t be something that’s privately owned, but the problem I see there is that within a capitalist system that becomes a form of disprivlage. Basically, he’s an artist working to represent his people, and artists deserve to get paid even when they’re doing that. Most representative cultural symbols don’t emerge organically, so someone has to design them. Stiffing them seems wrong, and copyright is actually doing what it ought to when it makes sure the artists are paid. But that only works if they get decide who gets to use it commercially.
Gilbert Baker’s gift of the Rainbow Flag was an amazing act that enriched the LGBT community and the world, but it had to be his choice. Otherwise his artistic autonomy means nothing. Thomas chose the opposite, and much as we might not like it, I do believe it should be respected.
Anyway, just my opinion, and something I think reasonable people can disagree on. As I said before, the wider cultural significance of his design is the aspect to which I’m most sympathetic.
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Unless pretty much any hint of potentially alienated labor is off the table you can mostly resolve the tension by being willing to pay your graphic designer and do rights clearance before picking a flag (at least for official purposes one would hope that doing that would be mandatory; though the fact that the issue went to court suggests that the step was skipped here).
If you skip that(moral of the story, don’t skip that), though, you run out of moral high ground pretty fast: hard to make a pleasant argument for eminent domain for symbols; and objecting to the selling out because it’s to a non-aboriginal entity is edging awfully close to telling the artist that his own interests are forever subordinate to our perception of the interests of ‘his people’. Which gets into deeply awkward paternalistic racism territory real fast. It’s not fundamentally different from forbidding him from getting a job or going to college because his people’s cultural integrity depends on his continuation of traditional hunter-gathering practices; which wouldn’t really fly(one hopes).
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Pretty much what I was saying, but you stated it more succinctly.
I do see one difference in that going to college or getting a job isn’t directly working as an activist to represent his people, though arguably any positive actions are de facto representative. And if it was a non-aboriginal who made the symbol it would be cultural appropriation, but since he is an aboriginal, it’s his culture and he’s got no less moral right to represent it than an aboriginal business, and it’s especially not the place of non-aboriginals to tell him he doesn’t.
Anyway, I may be wrong about this, but I get some sense that people are unsympathetic to him because he’s making money off his representation of his cultural heritage. But as far as I can tell he’s using that income to fund a life of activism, which seems no less laudable than a for-profit charity whose accounting isn’t public. In fact the main material difference seems to be that he created the design and they didn’t, and they resent or are at least trying to use resentment of him licensing to a non-aboriginal company.
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Nor do I, but the problem seems to have been caused by the Government’s error. It would have been great if Thomas had given it away for the common good, but that has to be his choice.
Just checking: are we sure Thomas is protecting his copyright in order to profit from it, or solely to retain some control over usage?
I’m a (very amateur) photographer who has occasionally been approached about republishing of my copyrighted images (sorry, Boingers; I’m not a Creative Commons fan). I’ve freely given permission (licence) for government agencies, academics and a couple of small/local businesses to use them, simply in exchange for a credit; in those instances, I’ve neither sought nor made any commercial arrangement whatsoever. Conversely, I’ve declined to allow environmental activists to use my images, as I oppose their tactics.
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A NEW FLAG FOR EVERYONE! Literally. Everyone gets their own flag. Then a great flag battle takes place a la LOTR and the winning flag(s) become the new official flag(s). Then each year, a commemorative flag festival will take place in the outback, call it the Burning Flag festival, where they re-create this epic battle and then burn all the losing flags. A lot of flags would need to be produced, and a great commercialization of flags would result. This is maybe the best possible outcome. Or it could end like LOTF.
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Well we know both trademark and copyright can be “abandoned”, IIRC, which is why Xerox wants you to say you’re making a Photocopy, and you need a facial tissue, not a Kleenex. And while I don’t disagree with your point, I would think corporate intellectual rights would be effected even more so.
Since I don’t really know the details of this specific case, the next part isn’t about it specifically per se - but flags in general.
I just have kind of an issue with the idea of an “ownership” of a flag like that. Now not talking about a flag that is purely decorative with like a lady bug or what have you. But flags such as this are supposed to represent a people or a culture or a nation or a cause. It’s a symbol. The problem with symbols is that it is really hard to claim complete ownership and meaning, as society will take your symbol and rearrange it.
So like I can totally see why this guy would be pissed that this Reclaim Australia would use this flag. I am sure the Navajo were dismayed at the Nazis using the Swastika. Or who knew the Gadsden flag would be resurrected by the Tea Party? Or the re-purposing of Thor’s hammer? Or poor, poor Pepe the frog? (Though that one is a bit different, as it was a repurposed unrelated artwork.)
Or let’s just take the American flag. Where it is flying and WHO is flying it can illicit different emotions and meanings. Above Perkins? Corporate Patriotism. Home town parade at 4th of July? Normal patriotism. Above a FOB in Iraq? Either a sense of home away from home, or encroaching foreigners. Over Iwa Jima? At a Klan rally? Well you get the point. Same symbol, different meanings.
So as a failed artist, I do appreciate and support protection of artists’ rights. But certain things like a flag meant to symbolize a people it seems a bit to “big” for it to belong to just one person. And like all things that become a cultural thing, it then becomes fair game to be co-opted, remixed, and perverted. YMMV. And unlike poor Pepe which was never meant to be a symbol representing anything, just a cartoon frog, the whole point of a flag is to represent something.
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Personally, I agree entirely.
However… I understand that acceptance of this particular flag is still precarious (officially it’s an official national flag, but in practice the establishment seem to begrudge it), so I can appreciate a desire to keep an eye on usage.
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Under very different circumstances, though - opposite, even. Due to the nature of trademarks (they only function if they’re unique), they can be lost simply due to the act of others using them (to refer to something else). But copyright can only be abandoned through a deliberate act by the creator. (Which is why you can get copyrighted “orphan works” - while there was a clear copyright owner, no one committed the act of abandonment, but now there’s no longer a clear owner and it’s still under copyright.)
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Retracted
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I think of a flag as a visual identifier, much like a logo. In that sense the Intellectual Property law best suited to flags would be trademark law rather than copyright.
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Are artists supposed to live on air and water? If he can’t sell or lease his work, how can he live? If you want to fix this, don’t wring your hands and say how selfish he is, give the man a decent monthly income for life so he can afford to give away his work. Or the government could arrange a non-exclusive license with him, to provide him some income.
Autochthonous person / non-autochthonous person issues don’t even arise here, really, that’s a red herring. This is the universal issue of who owns an artist’s work.
A sticky wicket indeed, but given the details, the artist was well within his rights to sell license, and the company is within its rights to defend the terms of that sale.
Sounds like the perfect opportunity to hold a contest for a different design, by an aboriginal artist and judged by that community, with the terms of the contest requiring the agreement that the result would have some variety of CC license. Solicit donations for prize $$ so the artist would get a good reward.
That’s what I would do, if I were part of that community, but I’m not. I do hope they work something out though.
Capitalism ruins everything.
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People who design flags intended for widespread use in a cause usually don’t get compensated the same way as artists who make and license other creative works—if they get compensated at all.
There are contemporaneous accounts that Francis Hopkinson, the guy who designed the first original stars-and-stripes iteration of the American Flag, billed congress a “quarter cask of wine” for his trouble. He didn’t get it.
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In all fairness to Spark Health, they’re not demanding to use it for free (so far), but they are demanding Thomas license them to use it. The problem isn’t with compensation; it’s with the artists’ self-determination of his work. The problem with compensation models that take away that self-determination is that it treats the artist’s work as not really his own based purely on its popularity.
I do sympathize with the arguments based on the wider cultural significance of a symbol, though I’m skeptical of the notion that flags are fundamentally unique. Lots of humans love us some flags which when done well yield simple easy to recognize designs fluttering in the wind. But placing them in a different category from other symbols, and therefore other works of design, seems arbitrary and backed up by little more than that lots of groups from nations to summer camps like to fly them for identification and signalling.
The cunning use of flags (to quote Eddie Izzard) isn’t intrinsic to them. Some cultures have not used flags that way, and many that do once used something else (like banners). I find the argument that because you put it on a piece of cloth and raise it up on a poll or drape it over something that it then becomes communal property uncompelling.
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After reading history of how this flag came to be, I think I’ve settled on this; if Thomas wants it to be an official flag, great. But he has to relinquish his copyright. And he can negotiate compensation at that time, if the Australians are willing to pay. If he doesn’t want to keep it as an official flag, or the Australians are unwilling to pay, he can keep his copyright and license it to whomever he wishes. But he can’t have it both ways.
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