The issue of intellectual property lies at the heart of this controversy. Not a lot of people recognise that when an artist creates an artwork, they own the copyright in that artwork image. Despite a buyer acquiring the painting, on a canvas for example, that title remains with the artist unless explicitly stated that they are transferring those ownership rights to the buyer via a contract or some other.
Regarding rights, there are different types of rights and usages of the artwork anyway. When a buyer acquires the painting, they are paying for a product. Where the buyer wants to appropriate the artwork image on another medium, on a shirt, for example, they must seek the requisite permission to do so from the artist. The buyer must purchase the license such as is done for stock photo's on Shutterstock.
Often, the artist can charge the buyer what they deem right for that permission. They can also specify what type of right that buyer can have. There are two main types of licenses:
A non-exclusive right means that the buyer has permission to reproduce the artwork image but they are not the only ones. The artist still retains their title to the image and they can choose to share this title with other buyers as well.
An exclusive right means that the buyer has the sole permission to reproduce the artwork image and if explicitly stated, the artist has given up their rights to the copyright.
Considering the reproduction rights are normally purchased to make a profit from the artwork image, the IP in the artwork image can often be much more valuable than the painting, original or otherwise. So it easy to see why discussions around licensing of artwork can be time-consuming, legally complicated and downright intimidating for both the artist and the buyer.
In fact, it is not uncommon for this exchange of permission to go wrong and the end result to be incorrect according to the common law. The results of these types of dealings can be disastrous leaving one party unjustly compensated and the other at risk of future litigation.
In other words, often the artist gets ripped off and the business opens themselves up to getting sued in the future!
So how did the Aboriginal flag come to be owned by a non-indigenous company? The Aboriginal Flag was a design and artwork created by a man named Harold Thomas. This design came to be a significant symbol to Australia and especially, indigenous Australia. And it became a design that Thomas licensed to other buyers. One such buyer, WAM Clothing, purchased not just any old license to the flag, but the exclusive license which allowed them to exclusively use Thomas’ design on their clothing.
This exclusive license legally gives them the right to pursue legal action against other businesses using the Aboriginal flag on clothing as it is now a piece of intellectual property that they solely own, for that medium. Unfortunately, because of this the flag can no longer be worn proudly by the very people it is meant to represent...unless payment for the license to a non-indigenous company has been made.