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.

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

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

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".

Cody Walker of the Indigenous All Stars recently wore an NRL jersey with the Aboriginal flag featured. ( AAP: Daniel Pockett )

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.

Indigenous artist Harold Thomas is the designer of the Aboriginal flag. ( ABC News: Nick Hose )

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.

Laura Thompson was given three days to cease and desist selling her merchandise. ( ABC News: Loretta Florance )

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.

Spark Health produced a range of clothing featuring the Indigenous flag to help fund its community programs. ( ABC News: Loretta Florance )

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."

Indigenous artist Lani Balzan holds her 2019 jersey design with Indigenous Dragons players Jonas Pearson, Tristan Sailor, Josh Kerr and Jai Field. ( ABC News: Kirstie Wellauer )

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."