Consider all restrictions and conditions before reproducing 4 min read
Earlier this year, we reported that the Australian Government had acquired the copyright in the Aboriginal Flag and, by a press release entitled 'Free Use of Aboriginal Flag Secured for All Australians', had granted a broad licence to the public.
The Government has now replaced the press release with a different form of licence, which is similar but slightly narrower in scope. In this Insight, we examine how the subtle changes might impact your business.
Key takeaways
- Until this year, most uses of the Aboriginal Flag would have required permission from the copyright owner, Harold Thomas, or his exclusive licensees, including Carroll & Richardson-Flagworld Pty Ltd (Flagworld). Such permission may have been declined or conditional.
- In a press release on 25 January 2022, the Government announced it had acquired the copyright from Mr Thomas, thereby 'securing the free use of the Aboriginal Flag' for all Australians. Despite that broad language, the licence was not entirely unrestricted.
- The Government has now replaced the press release with a form of licence which, in light of the exclusive rights of Flagworld, is slightly narrower.
- The current position is that usage rights remain broad, but users cannot reproduce the Aboriginal Flags on flags, pennants, banners or bunting; users must continue to respect Mr Thomas' moral rights; and users will also need to comply with any additional rules the Government may impose in the future.
Who in your organisation needs to know about this?
Anybody involved in decision-making about the use of the Aboriginal Flag, including senior executives, in-house counsel and marketing teams.
Lowering the old form of licence…
The Government originally published its press release in the 'Media Centre' section of the website of the Prime Minister at https://www.pm.gov.au/media/free-use-aboriginal-flag-secured-all-australians.
The focus of the press release was on how the Government was 'putting the flag in public hands', and it provided examples of how the Aboriginal Flag could be used in various commercial and non-commercial ways. It only indirectly alluded to restrictions on use, such as in the following paragraph:
To ensure the flags themselves are of the highest quality and continue to be manufactured in Australia, [Flagworld] will remain the exclusive licensed manufacturer and provider of Aboriginal Flags and bunting. While this ongoing arrangement covers commercial production, Flagworld is not restricting individuals from making their own flag for personal use.
The press release has since disappeared, but archived copies can be found using the Wayback Machine.
…and hoisting a new form of licence
The public licence is now spelled out on the 'Australian Flags' webpage of the Department of the Prime Minister and Cabinet website, at https://www.pmc.gov.au/government/australian-national-symbols/australian-flags. It succinctly states:
The Commonwealth owns the copyright of the Australian Aboriginal Flag. [Flagworld] is the exclusive licensed manufacturer and provider of the Australian Aboriginal Flag on flags and pennants, banners and buntings. Requests for permission to reproduce the Australian Aboriginal Flag on those mediums should be addressed to [Flagworld]:
…
The Commonwealth allows the design of the Australian Aboriginal Flag to be freely reproduced by the public on all other mediums.
Although much briefer than the press release, the scope of the licence remains very broad. The public will still be entitled to use the Aboriginal Flag for a range of commercial and non-commercial purposes, including printing the Aboriginal flag on apparel, painting the Aboriginal Flag on sports grounds, posting the Aboriginal Flag on websites and incorporating the Aboriginal Flag into paintings and other artworks.
However, this pithier version does appear to slightly narrow the scope of the licence, which we discuss below in relation to Flagworld.
Flagging a few restrictions again
As we mentioned in our earlier Insight:
To the extent that Flagworld retains any exclusive licence rights in relation to the Aboriginal Flag, other users will not be able to exercise those rights. However, the exact contractual arrangements between the Government and Flagworld are not publicly available.
The new form of licence somewhat clarifies the position by confirming that users cannot reproduce the Aboriginal Flag on flags, bunting, pennants or banners. The original press release did not mention pennants (which are usually understood to mean commemorative, triangular flags) or banners.
However, it is now unclear whether users can reproduce the Aboriginal Flag on flags, bunting, pennants or banners for personal use. The press release originally stated that while Flagworld 'would remain the exclusive licensed manufacturer and provider of Aboriginal Flags and bunting…Flagworld is not restricting individuals from making their own flag for personal use'. The new form of licence is silent on that point.
Mr Thomas retains his moral rights in the Aboriginal Flag as its creator. In our earlier Insight, we set out some potential moral rights infringements to avoid.
Users should keep an eye out for any additional restrictions that this or any future government may impose, whether by way of legislation, guidelines or otherwise. The departure from the original press release is one way in which the Government may have already changed the rules, even if only slightly.
Actions you can take now
If you are considering using the Aboriginal Flag in your marketing and advertising, or otherwise as part of your business, keep the above restrictions in mind. Contact us if you need legal advice on any current or proposed uses.