Each year the AFL dedicates one round of the season to the recognition and celebration of Indigenous players and culture, renamed the Sir Doug Nicholls round in 2016. Sir Doug played 54 games for Fitzroy and was the first Aboriginal person to be knighted.
The Aboriginal flag has become synonymous with the round, however this year the Aboriginal Flag will be absent. Why? Because the flag design is privately owned.
Copyright in a flag?
The Aboriginal flag was designed by Australian artist Harold Thomas, ahead of the NAIDOC March in 1971, as a symbol of the Aboriginal land rights movement. In 1995 the flag was recognised as a national flag of Australia and, in 1997, the Federal Court held that Thomas was the author and owner of the copyright in the Aboriginal flag.
In 2018, Thomas granted the exclusive worldwide copyright licence to produce the Aboriginal Flag on clothing to WAM Clothing Pty Ltd, a non-Indigenous company. As a result, WAM can control the use of the Aboriginal flag on clothing, worldwide and, every time the flag is licensed from WAM, Harold Thomas is paid royalties.
The flag is not in the public domain and won't be until 70 years after Thomas' death. Thomas is alive and well, aged 73 and living in Alice Springs. So, for the foreseeable future, use of the flag is controlled by WAM and Thomas.
What's happening with the AFL?
It's not clear whether the AFL tried and failed to negotiate a licence to use the flag. In any event, this year the word "Deadly" and the name of each ground's local traditional owners will be displayed in the centre circle of the ground instead.
WAM co-owner Semele Moore said that WAM had granted permission to the AFL for its players to wear the Aboriginal flag on their jumpers during the round, however permission was not granted for the jumpers to be reproduced for sale. We understand that an agreement between WAM and the AFL over the use of the flag in the centre circles was not reached.
Can the flag be "freed"?
Assuming he can get out of his agreement with WAM, Thomas could proclaim that he does not intend to enforce his Copyright and the flag is free to use. He doesn't have to.
There are a number of lobby groups pushing to "free the flag" for the obviously desirable end that all First Nations peoples and communities can use the flag whenever they want without cost or the need for consent.
A lobby group including former Senator and Australia's first Indigenous Olympic gold medallist Nova Peris is pushing for the flag to be freed from copyright laws and made available for all people to use without charge.
It's an unusual situation, because the flag's design is private property but has, by its popularity, become understood as a national icon. The federal government can fix the "problem" by extinguishing Thomas' rights, but would have to pay him fair compensation (the constitution requires this). That could be a very high price.
We suspect the present uncomfortable status will remain, leaving the other option: find a different flag.
We do not disclaim anything about this article. We're quite proud of it really.