Linda Burney calls for flag to remain ‘property of First Nations people’ as Bob Katter requests government claim copyright ownership

This article is more than 1 year old

This article is more than 1 year old

Ken Wyatt says he is “hopeful” of finding a resolution to the copyright and licensing issues surrounding the Aboriginal flag, as politicians join the call for a solution.

“The Aboriginal flag is a strong symbol for Aboriginal Australians and is respected by many non-Aboriginal Australians,” the minister for Indigenous Australians said in a statement.

“My hope is to find a way to respect the rights of the flag’s creator and for the flag to continue to play a unifying role.”

Labor’s spokesperson on Indigenous affairs, Linda Burney, said she had spoken with the minister and shared the view that “we need to find a way so that the flag remains the property of First Nations people”.

Government could buy Aboriginal flag copyright to settle dispute, lawyer says Read more

‬In a social media video released last week, Burney said she has a tattoo of the flag on her left arm.

“‪The Aboriginal flag is an important symbol to Indigenous and non-Indigenous Australians alike.

“The controversy around it at the moment are difficult and often legalistic issues,” she said. “I hope that we can find a resolution to the present issue.”

Federal MP Bob Katter said he had written to the prime minister requesting the government claim copyright ownership of the Aboriginal flag.

“It is outrageous that this great symbol which is respected throughout Australia has been used for commercial gain as is the case currently with the Queensland non-Indigenous, privately owned organisation which currently owns the clothing licence,” Katter said in a statement.

A leading copyright lawyer has suggested the federal government could buy the rights from Harold Thomas so the design could be made public.

The former CEO of the Australian Copyright Council, Fiona Phillips, said the legal status of the Aboriginal flag was a “unique situation” that required a public policy solution.

“The Aboriginal flag is not just an artistic work, it’s a national symbol and is particularly important to Indigenous Australians,” said Phillips, who has also worked at the Australian Competition and Consumer Commission and as a government adviser on copyright law.

A spokesperson for Wam Clothing, which has worldwide exclusive rights to reproduce the flag on clothing, said it welcomed anyone, “including the government, to contact us with respect to the use of the Aboriginal flag under our licence”.

Copyright of the flag rests with its designer, Luritja artist Harold Thomas, after the federal court found he was the sole copyright owner in 1997.

Thomas entered into a number of licensing arrangements over the years, most recently with the non-Indigenous-owned company Wam Clothing in November 2018.

Last week Wam Clothing sent notice to at least one company, the Aboriginal-owned social enterprise Spark Health, to stop producing clothing featuring the design.

Spark Health produced a range called “Clothing the gap”, the profits from which go towards Aboriginal health education programs. Spark Health said it was currently seeking legal advice.

Wam Clothing is part-owned by Queensland businessman Ben Wooster, who has had a long association with Harold Thomas, as a licensee of the flag.

A spokesperson for Wam Clothing said the company “has a strong desire to promote the Aboriginal flag in a positive light”, and “has been actively inviting any organisations, manufacturers and sellers who wish to use the Aboriginal flag on clothing to contact us and discuss their options”.

Wooster was sole owner of Birubi Art, a now-defunct company found by the federal court to have “made false or misleading representations that products it sold were made in Australia and hand-painted by Australian Aboriginal persons, in breach of the Australian consumer law”.

The Australian Competition and Consumer Commission (ACCC) is seeking a $2m to $2.5m penalty against Birubi Art, to signify the “serious cultural harm” done by fake Aboriginal art.

These harms were “grave and far-reaching” and involved “not just direct economic loss but a weakening of the value of the authentic products” and an “erosion of consumer confidence in the entire sector”, the ACCC told the court.

Katter acknowledged the problems arising from ownership by the government and suggested the rights be handed to a respected body.

He also said a legal situation should be avoided where anyone at all could use the flag.

“I specifically reference one example where the Aboriginal flag was used in a nefarious way by an American racist organisation that had branches in Australia,” Katter’s statement said.