Prior to changes this year, the use of the Aboriginal Flag (Flag) required the permission of the copyright owner and creator of the Flag, Mr Harold Thomas (Mr Thomas).
On 25 January 2022, the Australian Government announced that it acquired the copyright in the Flag from Mr Thomas for $20million and that the Flag was now freely available for use by the Australian public for commercial and non-commercial purposes, without the need to pay any fees or royalties for use of copyright.
However, despite the Australian Government now owning the copyright in the Flag and the Australian public being entitled to use the Flag, Australians and Australian businesses need to bear in the mind the following restrictions when using the Flag:
- Australians cannot commercially produce or supply the Flag on flags, bunting, pennants or banners, as Carroll & Richardson-Flagworld are the exclusive licenced manufacturer and provider in that respect. However, Australians should note that it is not clear whether they can reproduce the Flag on flags, bunting, pennants or banners for personal use.
- Mr Thomas retains his moral rights as creator of the Flag, meaning that a third party cannot be attributed as the creator of the Flag, Mr Thomas is entitled to have the work attributed to him and a failure to credit him when using the Flag may amount to infringement, and the Flag cannot be subjected to derogatory treatment (such as distorting or altering the Flag or destroying or mutilating it).
- Any laws or guidelines imposed by the Australian Government in the future which may set out further restrictions on the use of the Flag.
Australians and Australian businesses should therefore pay close attention to the above restrictions when using the Flag to ensure that the Flag is used in a dignified manner, is reproduced completely and accurately and respects Mr Thomas’ moral rights in the Flag.
If you would like advice or assistance in relation commercial law matters, please contact our Senior Associate, Josef Ferraro on jferraro@marsdens.net.au or our accredited business law specialists and Partners Justin Thornton on jthornton@marsdens.net.au and Rahul Lachman on rlachman@marsdens.net.au or otherwise by calling them on (02) 4626 5077.
The contents of this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice. Specific legal advice should always be sought separately before taking any action based on this publication.
