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Copyright in the Australian Aboriginal Flag Assigned to the Commonwealth of Australia

Brand Finance
01 March 2023

At the beginning of 2022, Mr Harold Thomas, artist and the creator of the Australian Aboriginal Flag, entered into a landmark deal to assign copyright in the Aboriginal Flag to the Commonwealth of Australia. Corrs acted pro bono for Mr Thomas, and led the negotiations with Colin Golvan AM KC, while Clayton Utz acted for the Commonwealth of Australia, represented by the National Indigenous Australians Agency.

Chrystal Dare, Special Counsel, Corrs Chambers Westgarth

When Corrs commenced acting for Mr Thomas in the beginning of 2020, it was clear that there needed to be a resolution to the complex issues that sat behind the Free the Flag movement in Australia, in the unusual situation where the copyright in a national flag remained privately held.

After almost two years of negotiations, the transaction was ultimately concluded in the year following the 50th anniversary of the Flag’s creation.

The deal was announced by then Prime Minister Scott Morrison on 25 January 2022, and the A$20.05 million total transaction amount included a payment to Mr Thomas of A$13.5 million as consideration for the copyright assignment, and buy-out of contentious licences to WAM Clothing and Wooster Holdings.

Mr Thomas retained his moral rights in the Flag after the assignment, including the right of integrity.

In 1995, the Aboriginal Flag was declared an official Flag of Australia under the Flags Act 1953 (Cth). In 1997, in the case of Thomas, Harold Joseph v Brown, David George [1997] FCA 215; 37 IPR 207, represented by Colin Golvan AM KC, Harold Thomas’s authorship and ownership of the Flag was contested. Ultimately, Sheppard J of the Federal Court of Australia declared Harold Joseph Thomas the author of the artistic work, being the design for the Flag. The case provides an illuminating history of the period and the Flag’s inception, and removed any questions around authorship and ownership entering into the negotiations.

The negotiations involved five contracting parties and their legal representatives, a three-week Senate enquiry in the second half of 2020, and some unique tax dimensions given the age of this intangible asset. Nine partners and 15 lawyers across Corrs’ IP, Tax, Projects, and Corporate teams were involved.

Aside from the A$13.5 million consideration for Assignment, the public interest dimensions of the deal were critical, and, as such, were enshrined in the deal document – a public document to reside in the National Archives of Australia at the instigation of former Indigenous Affairs minister, Kenneth Wyatt AM.

Those key planks included:

+Assignment of the copyright in the Flag to the Commonwealth so that the Flag may be permitted by the Commonwealth to be open for public use, including for reproduction or communication to the public by any person in any way without licence fee (subject to any continuing exclusive licences);

+Establishment of an Australian Aboriginal Flag Legacy not-for-profit by Mr Thomas with A$2 million of the consideration payment amount;

+Financial support of the ongoing work of NAIDOC;

+A$100,000 per year allocated in furtherance of the development of Indigenous governance and leadership; and

+Establishment and maintenance of an online repository of information and educational material relating to the Australian Aboriginal Flag.

Colin Golvan AM KC has commented:

“It is unquestionably the most important copyright work we have. The fact that we have a truly unifying flag which is free to the Aboriginal people in particular for usage as their representative flag is an important step in our reconciliation journey.”

Reflective of this significance is the level of public interest around this matter and press attention in Australia. The matter brought up questions around artistic works, copyright ownership and licensing, the role of flags in society, and the nature and value of intellectual property assets.

Corrs worked alongside David Haigh and his team at Brand Finance in relation to this unique matter, both teams acting on a pro bono basis.

Corrs is now establishing the Australian Aboriginal Flag Legacy not-for-profit on Mr Thomas’s behalf with A$2 million of the transaction proceeds, and it is anticipated that Corrs will have ongoing involvement with that charity, which will focus on Indigenous men's and women's health.

Mr Thomas plans to launch an exhibition of fifty original artworks (predominantly oil paintings) which he created in the fiftieth year of the Australian Aboriginal Flag, in the coming months.

As for the Flag now, Mr Thomas says:

“The Aboriginal flag is in a safe place where the Commonwealth will protect and be the custodian of it, and I like that… because it's freed up to be accessed for all Australian people…and allows the Aboriginal flag to breathe a new life in itself…in partnership with the Australian flag.”

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