Story 2: Copyright in the Aboriginal Flag

2020-2022: National

Mr Harold Thomas signing the momentous agreement on 21 January 2022

There is no symbol of Aboriginal identity in this country more powerful than the Australian Aboriginal Flag. Corrs had the great privilege of acting for Mr Harold Thomas, its creator, on the deal to assign copyright in the Flag to the Commonwealth.

When Corrs started acting for Mr Thomas in 2020, it was clear the parties needed to resolve the issues underpinning the Free the Flag movement, in the unusual situation where the national flag’s copyright was privately held.

After a three-week Senate Inquiry, and over two years of detailed negotiations with the Commonwealth, led by Corrs, a deal was reached which:

  • respects and truly acknowledges the Indigenous communities at the heart of the Flag’s unparalleled significance;
  • allows the Flag to be used by all Australians; and
  • respects the value of this artistic work.

The deal also significantly contributes to the public interest: Mr Thomas is donating $2 million to establish a not-for-profit which will make periodic disbursements in the interest of Aboriginal Australians, the Commonwealth is directing all future Flagworld royalties to support the NAIDOC Committee’s ongoing work, and the Commonwealth is also funding a $100,000 annual scholarship to further Indigenous governance and leadership.

The $20.05 million transaction included a payment to Mr Thomas for the copyright assignment and buy-out of the licences.  As part of the transfer, Mr Thomas retains his moral rights in the Flag, including the right of integrity.

Mr Harold Thomas’ artwork gifted to the Commonwealth as part of the deal for display at Parliament House

Colin Golvan AM QC originally referred the matter to Corrs and, in total, over nine partners and 15 lawyers across Corrs’ IP, Tax, Projects, and Corporate teams were involved. The matter was led by Chrystal Dare and Kate Hay.

Prime Minister Scott Morrison received regular updates on the negotiations, and on 25 January 2022 announced the deal, which is an event of great historical significance.

Mr Thomas, could not be happier with the result. He says, ‘[t]he Flag represents the timeless history of our land and our people’s time on it. It carries the message that there is a uniting symbol and voice for all Indigenous people, and I hope that this arrangement allows the Aboriginal Flag to breathe a new life in itself.’

This story was submitted by Corrs Chambers Westgarth.