Australia Pays $20 Million To Buy The Copyright Of Aboriginal Flag, But It's Still Not Public Domain (techdirt.com) 66
Mike Masnick, reporting for TechDirt: Over a decade ago, we wrote about how Google had to edit out the Australian Aboriginal flag from a logo because of copyright concerns. An 11-year-old girl had won a contest to design a Google logo for Australia Day, and her logo included a simple drawing of the popular Aboriginal flag. Harold Thomas created a (fairly simple) flag design "as a symbol of unity and national identity" for the Aboriginal people in Australia. The flag became quite popular... and then Thomas basically became a copyright landlord, demanding payment for pretty much any usage. In 2019, Thomas did a big licensing deal with a clothing company and proceeded to send out a bunch of cease-and-desist letters to others. It got so bad that the Australian Senate sought to have the government figure out a way to make sure the public could use the flag. Apparently it took over two years, but the "deal" has been worked out -- and it involves the Australian government paying over $20 million to basically buy out the copyright and the former licensing deals, but that still doesn't mean the flag is truly in the public domain: "Mr Thomas will retain moral rights over the flag, but has agreed to give up copyright in return for all future royalties the Commonwealth receives from commercial flag sales to be put towards the ongoing work of NAIDOC. A commercial company will keep its exclusive licence to be able to manufacture Aboriginal flags for commercial use, but the government said the company would not stop people from making their own flags for personal use."
Why the need? (Score:5, Insightful)
Australian Senate sought to have the government figure out a way to make sure the public could use the flag.
Why? If the 'Aboriginal Flag' is not already public domain, then it isn't really a flag. Make a new one. It would be way cheaper than shelling out $20mil.
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As simple as that idea is, the premise isn't wrong.... if it's to be a public flag that represent a group of people, at the very least the copy right should belong to "the people" it represents, and not just to one person....
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I don't usually fall on the side of copyright, but this wasn't a crowdfunded design. This guy made a flag and people decided they liked it. If Matt Groening decided to make an of Bart Simpson peeing on the British flag and the people of Belize adopted it as their own flag, it wouldn't give them the copyright to the character. They could probably use the flag in a unofficial capacity, but not commercially.
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In this case it belonged to the Australian Aboriginal artist who designed it.
It sounds like he generally treated his status as copyright holder as a tool to act as a guardian of the flag for aboriginals until a dispute with Google keyed him into the concept that he could actually make a lot of money [wikipedia.org].
I don't really fault him, I'm not sure there's a lot of people who created something iconic who would then turn down the opportunity for a decent chunk of cash (as all the celebrities selling NFTs would demonstr
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I must say, there are many flags of groups that circle around on the internet. It occurs to me that those all almost certainly fall under someone's exclusive copyright.
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They could probably use the flag in a unofficial capacity, but not commercially.
Then why pay him $20mil, especially if he still 'owns' the copyright?
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He doesn't. The issue which is a little muddled in the story description, is that he had given an exclusive commercial contract to make shirts and the like to another company. The government bought the copyright off him, but that doesnt negate the license. I'm assuming that at some point that contract sunsets, but until then the govt is legally bound to respect the terms of it.
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Not quite. There really isn't a precedent for the govt passing a law to terminate a specific contract, and what precedent exists only exists from criminal rather than civil law where the High Court has found that the separation of judicial powers means the government cant pass a law that disadvantages a specific party. That said R v Kirby; Ex parte Boilermakers' Society of Australia COULD be argued to extend this regime to civil law, when it banned the govt from setting up its own courts to deal with indust
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Yep. They should have shown him the door and made a new one.
I'm sure the $20 million could have done a lot of good for the Aboriginal people.
Government stupidity at its finest.
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Yep. They should have shown him the door and made a new one. I'm sure the $20 million could have done a lot of good for the Aboriginal people. Government stupidity at its finest.
Government stupidity? So, how much do you think a new one would have cost? New Zealand has periodically looked at a new flag. In the 2015/2016 round, it spend NZ$26mil on taking things as far as votes https://en.wikipedia.org/wiki/... [wikipedia.org]. There were no comprehensive estimates as to what it would cost the country and business overall should a new flag be picked, but they did estimate NZ$2.7mil to "to replace about 1,500 flags on government buildings and to update defence force uniforms (excluding new badges, la
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So, how much do you think a new one would have cost?
Much less than $20mil. I'm not sure why you are comparing this to the NZ flag, since there was no copyright issue forcing a change. The original aboriginal flag wasn't voted on by the public at large. Also, any 'replacement costs' are probably overstated, as there is no need to immediately switch every single flag in the country. Uniforms, signs, flags etc. will need periodic replacement anyways. You can easily put, "Both flags will be recognized for X years to avoid mass replacement of flags."
made by people who probably evaluated the costs reasonably well.
Yep, if
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I'm in Western Australia and I'm not authorised to see it either.
Probably have to be a subscriber to see it.
Note that they used the "authorized spelling instead of using Australian English - probably generated by the underlying webserver code but still .
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$20m is a tiny, tiny, tiny, tiny drop in the bucket of money poured out for the Aboriginal people. The amount of government spending specifically addressing Aboriginal Australians is immense especially in Health.
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Make a new one. It would be way cheaper than shelling out $20mil.
Citation needed.
New Zealand has periodically looked at a new flag. In the 2015/2016 round, it spend NZ$26mil on taking things as far as votes https://en.wikipedia.org/wiki/... [wikipedia.org]. There were no comprehensive estimates as to what it would cost the country and business overall should a new flag be picked, but they did estimate NZ$2.7mil to "to replace about 1,500 flags on government buildings and to update defence force uniforms (excluding new badges, lapel pins and pennants for official vehicles)". https://www. [theguardian.com]
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Make a new one. It would be way cheaper than shelling out $20mil.
Yeah, because no people would ever complain about having to have their flag changed for purely corporate interests. /sarcasm.
$20m is pocket change for a country that spends $45bn annually on defence. Imagine what the people (who are already pissed at the Australian government) would think about being told how little they are worth. The government probably wasted more than $20m just coming to this decision.
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Imagine what the people (who are already pissed at the Australian government) would think about being told how little they are worth.
They can go complain to the copyright holder who is restricting access to 'their' flag. Why on earth would they be pissed at the government?
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What 'corporate interests' would be served by making a new, public domain flag?
Copyright is by its nature a corporate interest. If you follow the story the entire situation came to head due to the copyright being authorised to a clothing company who then threatened to sue basically everyone.
They can go complain to the copyright holder who is restricting access to 'their' flag. Why on earth would they be pissed at the government?
Because life is more complicated than your black and white world view and in Australia it has to do with a long history of being pissed at the government, companies screwing the indigenous, a court case, an incidental government declaration making the flag official, and the resulting situation we a
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That misses two points:
1. That the flag became popular for reasons entirely random.
2. That copyright needs to have a statute of limitations.
The copyright owner is within their right to allow or prohibit anyone else from using their copyrighted product, but if something is so popular that it becomes unable to reign in those who misuse it, then the copyright should be terminated by the court system of the country of the copyright holder. It's within the public's interest to see copyrights on flags, logos, bra
Who cares? (Score:3)
quick some copyright an 51 star flag and other num (Score:2)
quick some copyright an 51 star flag and other numbers.
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Derivative work. Copyright denied.
"Moral rights"? What did they buy? (Score:2)
Not a lawyer here, and not an Australian... But what might be meant by retaining moral rights on the flag design?
And if that company retains the only right to sell flags with the design...what did the government actually buy? The profits from selling the flag?
Re:"Moral rights"? What did they buy? (Score:4, Insightful)
And if that company retains the only right to sell flags with the design...what did the government actually buy? The profits from selling the flag?
They bought the right for people to use the image of the flag without fear of unexpected copyright claims.
Re:"Moral rights"? What did they buy? (Score:5, Interesting)
Well, seeing as the Commonwealth of Australia now owns the copyright to the Aboriginal flag, it's... uh... out of copyright, according to this:
"It is possible the flag is now even more free than the government suggests. As academic David Brennan points out, under the Copyright Act 1968, if the Commonwealth owns copyright in an artistic work, then it expires 50 years after the calendar year in which the work was made. This contrasts with the usual term of protection for artistic works, which is the life of the author and 70 years thereafter.
If this is correct, it would mean that copyright in the flag (which Thomas created in 1971) actually expired on January 1, 2022, and the flag is now in the public domain. This would throw into question the validity of the exclusive licence to Flagworld and the government’s ability to dispose of royalties. "
From here: https://theconversation.com/th... [theconversation.com]
This should be fun to watch! :)
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This should be fun to watch! :)
For sure!
Re:"Moral rights"? What did they buy? (Score:5, Informative)
The "moral rights" are the rights held by the author/creator of a work to be identified as the author/creator, that the work will not be falsely attributed to another, and that the work not be used in a way to bring disrepute on the author/creator. These generally cannot be sold. The right to reproduce a work can be sold.
So, for example, the Aboriginal Flag was designed by Harold Thomas. He licensed it to WAM Clothing for use on clothing, and another group for flag production. Moral rights are what prevent WAM from claiming they, or Krusty the Clown, created the emblem. WAM, on several occasions, enforced the exclusivity of this license against the uses of the emblem on clothing. This license, in the minds of some, meant the flag was not "free". The government has essentially bought the rights to the use of the emblem on clothing from WAM, and some other rights from Harold Thomas. Unlike the US, this does not make anything "public domain" and, as is de rigueur for the present government, they have oversold the "freedom" involved. No permission is required for non-commercial use on clothing, but royalties may still be payable to the government for commercial use. These funds will go into channels that benefit Aboriginal peoples (remains to be seen).
The whole thing is a mess.
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Not a lawyer here, and not an Australian... But what might be meant by retaining moral rights on the flag design?
Basically the right of being recognized as the author. The moral rights are personal and inalienable, meaning that they cannot be sold to a third-party like copyrights.
And if that company retains the only right to sell flags with the design...what did the government actually buy? The profits from selling the flag?
The government bought the copyright. The company had secured an exclusive license from the author which as far as I understand is extinguished and likely a new licensing is in place between the company and the new copyright holder, which is now the government, granting exclusive commercial use of the copyright for manufacturing but allowing t
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And if that company retains the only right to sell flags with the design...what did the government actually buy? The profits from selling the flag?
TFA (linked in the summary) answers that:
Prime Minister Scott Morrison said the flag would be managed in a similar manner to the Australian national flag, where its use is free, but must be presented in a "respectful and dignified way".
"All Australians can now put the Aboriginal Flag on apparel such as sports jerseys and shirts, it can be painted on sports grounds, included on websites, in paintings and other artworks, used digitally and in any other medium without having to ask for permission or pay a fee," Mr Morrison said.
From what's not said, it seems brick-and-mortar and Amazon T-shirt sales are still covered by the designer's moral rights? The "respectful and dignified" clause also appears to limit its comedic and satiric use, but maybe that already falls under fair use. I'm afraid only an OZ can answer this.
Would someone post a pic? (Score:2)
Re:Would someone post a pic? (Score:5, Informative)
It's a horizontal bi-color of black on top and red on the bottom with a yellow disc in the center.
Wikipedia page: https://en.wikipedia.org/wiki/Australian_Aboriginal_Flag [wikipedia.org]
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It sure seems like the flag being an official emblem would be incompatible with private ownership. That would be like having a national park that is also private land. It just doesn't make any sense.
Looking at the 1997 court case, this all actually looks like a bad-faith negotiation on the part of Thomas. When the government made the flag official in 1995, it was unclear who the original author was, so it wasn't possible to just compensate them for the design. The idea was to pay the designer once it wa
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I feel something so simple can surely qualify as a trademark, but should not qualify for copyright.
It is so simple that surely this very same design was invented many times prior in history, which I believe should be the test. If the court hold that it is more likely than not that this design has been created before in history, it should not qualify for copyright.
Of more intricate things, such would not be easily found, of course.
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Please someone post a pic of that flag . Would like to see what it looks like
It's almost as if you've never heard of google.
Never pay the blackmailer (Score:2)
Oh. You did.
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Now imagine if someone kidnapped your daughter and demanded $50 for her safe return and you didn't pay. What would she think of you? That's kind of the scenario here. The blackmailer is demanding absolute chump change, from a government with an annual budget exceeding $600bn all the while holding people who the flag represents hostage, people who already hate a government which has historically fucked them over time and time again.
$20m is chump change.
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Yup, the situation is not as negative as is being presented here. The designer (aboriginal) has retained the right to call it his design. I don't know who the $20M goes to (probably mostly to the current licensee) but any future royalties feed into aboriginal funding. https://www.abc.net.au/news/20... [abc.net.au]
Mausing part (Score:5, Informative)
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The truly amusing part here is it was an Aboriginal man that designed the flag and screwed over the Aboriginal community by enforcing copyright
Nah, he screwed over the taxpayer. They are the ones who pay for all the Aboriginal flags, not the Aboriginal communities (plural - there are thousands, and no unity).
There is a wrong sense of hope here... (Score:1)
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There isn't a single indigenous population their are hundreds, all with different languages and cultures, many of which conflict with each other culturally or sometimes with outright hate.
That is just human nature. It was the same in all stone-age (hunter/gatherer) cultures, including your ancestors and mine. Loyalty is to the extended family. With agriculture, it became possible for people to organise into larger groups called tribes. It took thousands of years for tribes to grow into nations. And plenty of nations are still wracked with tribal conflict. (The US even seems to be heading back there.)
I'd tell the guy (Score:2)
here, take my $10,000 buyout, or we'll just design another flag and you'll get $0.
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The "current" version of the flag was recognized as "Aboriginal Flag" by the Australian authorities in 1995.
So yes, just design another flag and inflict it on the Aboriginal people (people, not People. They're not a nation), with or without their agreement.
And? (Score:2)
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Quite possibly...
https://theconversation.com/th... [theconversation.com]
"It is possible the flag is now even more free than the government suggests. As academic David Brennan points out, under the Copyright Act 1968, if the Commonwealth owns copyright in an artistic work, then it expires 50 years after the calendar year in which the work was made. This contrasts with the usual term of protection for artistic works, which is the life of the author and 70 years thereafter.
If this is correct, it would mean that copyright in the fla
Kwanza levels of authenticity (Score:2)
This is just too delicious.
Some aborigine makes up a flag, then uses western style copyright to screw everybody over!
Government can't exactly complain - Micky Mouse gets protected for 100 years, but this aborigine doesn't? That would never fly, lol
I wonder who owns the copyright to the "rainbow flag". Did the US Dept of State pay up for that farewell display use of it in Afghanistan? :)