
Ask HN: Finding the Australian Aboriginal flag in all artworks - thomasfromcdnjs
For those who don&#x27;t know, the Australian Aboriginal flag (<a href="https:&#x2F;&#x2F;i.imgur.com&#x2F;sGsnLkv.png" rel="nofollow">https:&#x2F;&#x2F;i.imgur.com&#x2F;sGsnLkv.png</a>) is actually copy-righted by an individual although it is recognized as a national flag.<p>It was created in 1971 by an artist named Harold Thomas and went onto to become culturally accepted as the flag of the Aboriginal people. And then as above, went onto being proclaimed a national flag by the government.<p>Unfortunately, since then, Harold Thomas has licensed the flag to various private agencies. One of the licenses was exclusive to a clothing label, which now means that no other Aboriginal business can print clothes with the flag on it without paying royalties. (Sitting around 20%) A lot of Aboriginals feel dismay at the current situation of the licensing.<p>I am rather free market orientated and do respect the artists desires.<p>But, the situation is rather unique, I can&#x27;t seem to find any other examples in the world of a nations&#x2F;cultures flag being owned by an individual.<p>The creator has no intention to relinquish the copyright, so movements have already sprung up.<p>A good timeline of events can be found here -&gt; <a href="https:&#x2F;&#x2F;clothingthegap.com.au&#x2F;pages&#x2F;aboriginal-flag-timeline" rel="nofollow">https:&#x2F;&#x2F;clothingthegap.com.au&#x2F;pages&#x2F;aboriginal-flag-timeline</a><p>The page above found an artwork released 4 years prior that contains the visual elements of the flag -&gt; <a href="https:&#x2F;&#x2F;i.imgur.com&#x2F;rKbS2m4.jpg" rel="nofollow">https:&#x2F;&#x2F;i.imgur.com&#x2F;rKbS2m4.jpg</a><p>The flag artist studied European art just before he created the aboriginal flag so he may have already copied it himself.<p>For a bit of fun and to build a case, I thought it would be a cool experiment to try find the Aboriginal flag in as many pre-existing artworks as possible.<p>I am looking for API&#x27;s and libs that would help me achieve this as I think it is a fun problem.<p>Regardless, I&#x27;ve used HN for over a decade and have no doubt some of the smartest people on the planet live here.<p>So if you find this tale intriguing and perhaps unjust, any advice on how to tackle this problem from a public policy perspective would also be great.
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thomasfromcdnjs
Just to add more juice to the story.

The company he gave the exclusive rights to was co-founded by his friend. Who
got fined 2.4 million dollars the year prior for selling "authentic"
Aboriginal art that was actually made in Indonesia.

[https://www.theguardian.com/australia-
news/2019/jun/11/compa...](https://www.theguardian.com/australia-
news/2019/jun/11/company-that-holds-aboriginal-flag-rights-part-owned-by-man-
prosecuted-for-selling-fake-art)

~~~
andrewflnr
Wow, based on OP I thought Thomas was just a colossal idiot, but that tips the
scales to malicious.

------
gnopgnip
This flag design would not be eligible for copyright in most countries, as it
is just geometric designs and doesn't meet the threshold of creativity. For
instance the Tommy Hilfiger flag has been denied copyright protection, it is
of similar complexity. Has the original copyright ever been tested in court
over the threshold of creativity?

~~~
arcticbull
In fact even the current American Airlines logo was twice denied protection
for not meeting the threshold of creativity -- before eventually being
approved in 2018. [1] The bar is pretty high.

[1] [https://www.latimes.com/business/la-fi-travel-briefcase-
amer...](https://www.latimes.com/business/la-fi-travel-briefcase-american-
airlines-copyright-20181214-story.html)

------
ksaj
While not exactly the same, the situation with the Canadian RCMP (Royal
Canadian Mounted Police) uniform might be an interesting side note to your
quest.

The RCMP uniform trademark was licensed to Walt Disney in order to protect it
for 5 years while the RCMP learned how to do it on their own:
[https://www.cbc.ca/news/canada/mountie-no-longer-
disney-s-1....](https://www.cbc.ca/news/canada/mountie-no-longer-
disney-s-1.190139)

Canada has specific laws and protocols on the use of its symbols, which
include the flag. It doesn't cover aboriginal or provincial flags, but has
some interesting clauses of how and where they can be used:
[https://www.canada.ca/en/canadian-
heritage/services/commerci...](https://www.canada.ca/en/canadian-
heritage/services/commercial-use-symbols-canada.html)

------
Johnjonjoan
The closest flag I could find in the ten minutes of Google searching I could
allot is the flag of the kingdom of Württemberg (1805 - 1918). It's just
missing the yellow circle. Coincidentally the coat of arms involves a yellow
oval and would often be placed in the centre of the flag.

[https://en.m.wikipedia.org/wiki/Kingdom_of_W%C3%BCrttemberg](https://en.m.wikipedia.org/wiki/Kingdom_of_W%C3%BCrttemberg)

------
DarthGhandi
> For a bit of fun and to build a case, I thought it would be a cool
> experiment to try find the Aboriginal flag in as many pre-existing artworks
> as possible.

Wouldn't this be the exact thing that the copyright holder would want too,
only not "for fun" but for litigation?

I'd be interested if it ever existed before the original artist made it but
have my sincere doubts is even a remote possibility, historians seem to be of
the opinion he just made it up in the 70's and it stuck.

Flags have never held meaning to real indigenous culture.

~~~
luckylion
_pre-existing_ is the keyword there, I believe. You can't claim copyright on
something you copied, you have to be the original creator.

~~~
njharman
> You can't claim copyright on something you copied, you have to be the
> original creator.

Depending on jurisdiction and when copyright was claimed (laws change) that is
not necessarily true. In USA use to be first to file was awarded the
copyright. Also in USA, for instance, copyright is granted for collections,
organizations, arrangements or compositions of pre-existing things. Such a
photographer can claim copyright on photo of a bridge. Or editor for a
collection of public domain poems.

~~~
jcranmer
You're mixing up patents with copyright. First-to-file is an element of patent
law, where priority is given to the first person to file the patent as opposed
to the prior version in the US law (first-to-invent) where priority would be
given to someone who demonstrated that they invented it first.

The actual law for the US (17 USC §201 (a)):

> Copyright in a work protected under this title vests initially in the author
> or authors of the work. The authors of a joint work are coowners of
> copyright in the work.

You cannot own copyright on a work that you have not authored, unless it has
been (lawfully) transferred to you.

Incidentally, this is basically the core of the "Happy Birthday" copyright
dispute: it was never established that the Hill sisters authored the lyrics,
so they never had a copyright interest in it.

~~~
pbhjpbhj
They're probably not confusing patents/copyright.

AIUI, USA didn't adopt copyright as an unregistered right, ratifying the Berne
Convention, until 1988, 100 years after most of the rest of the World.

I don't quite know how registration works (see copyright.gov) but it seems
there might be a presumption of ownership that's established? They still have
registration in USA and it affords greater rights (higher damages in cases of
infringement I think). Notably, novelty is not an absolute requirement for
copyright registration.

~~~
jcranmer
The Copyright Act of 1976 is the big recent overhaul of US copyright, which
switched copyright to automatic registration and established regimes for
unpublished and orphaned works, which was previously largely handled by state
laws, usually under common law.

The requirement that the author must hold copyright seems to be implicit in
earlier versions of copyright law all the way back to the 1790 Copyright Act;
I don't see any provision that would let one copyright a work one was not the
author of.

Registration creates prima facie evidence that the registrant is the
legitimate owner of the copyright. Anyone who disputes the claim in the face
of a registered copyright has the burden of proof to demonstrate that the
registration was erroneous.

------
jszymborski
The recognition is the easier part (I'd be more than happy to help, email in
my profile), the far harder part is identifying what historic photos to
identify them in. News archives would be a good source but copyright laws
(rearing their ugly neck again) prevent us from easily obtaining a large stack
of them.

I know the Australian Broadcasting Company has a lot of their archival video
under Creative Commons, so that might be a good bet. If anyone has a better
idea, please let us all know :)

~~~
perilunar
Australian Broadcasting _Corporation_ archives:

[https://www.abc.net.au/archives/openarchives.htm](https://www.abc.net.au/archives/openarchives.htm)

------
airbreather
The concept of licensing a national flag is interesting, other than to maybe
prevent unwanted use in certain ways, is this not something owned by all
Australian people?

If I draw one on a piece of paper and hang it from my balcony, where do I
stand under this licensing?

And if I sell that on Etsy, or maybe a landscape that has an element in the
background where this flag can be seen?

(I am an Australian, but not indigenous)

~~~
thomasfromcdnjs
Here is a decent summary of the ongoing copyright debate ->
[https://theconversation.com/explainer-our-copyright-laws-
and...](https://theconversation.com/explainer-our-copyright-laws-and-the-
australian-aboriginal-flag-118687)

~~~
pueblito
From that link, "Thomas was successful in establishing his claim to authorship
before the Federal Court in 1997."

IANAL, but I believe you're 23 years too late

~~~
pbhjpbhj
Authorship isn't sufficient for ownership of copyright.

Trademark is probably the issue that's most pertinent. Even if the flag
weren't a work owned by Thomas, for copyright purposes, then it seems it's
their trademark (registered or established by use).

IANAL

------
sloaken
I would assume you could not copyright a national flag. If so, well heck I can
think of a bunch of flags I need to get copyrighted.

~~~
stephen_g
How many flags did you design that later got adopted by countries or people
groups?

There’s no question he designed it (although that artwork that contains a very
similar design is very interesting). But the Government should have probably
compulsorarily acquired it by now if he isn’t willing to give it up... I guess
they’re waiting for him to die so it won’t be as easy for them to be dragged
to the high court over the “on just terms” clause in the Constitution.

~~~
thomasfromcdnjs
It won't be in the public domain until 70 years after his death. (Though it
might be easier to override his heir's claim after he is deceased)

~~~
stephen_g
I was talking about the latter - using section 51 of the constitution to
acquire the intellectual property (the Australian Government can make a law to
compulsorily acquire property from citizens "for any purpose" but only "on
just terms").

My reasoning is that they're a lot more likely to have another "The Castle"
episode (great movie, by the way) while he's alive rather than when the
copyright is assigned or inherited to somebody else after his death.

~~~
thomasfromcdnjs
Thanks! Do you perhaps know any cases of acquired intellectual property?

I don't see any mentions of it.

[https://en.wikipedia.org/wiki/Section_51(xxxi)_of_the_Consti...](https://en.wikipedia.org/wiki/Section_51\(xxxi\)_of_the_Constitution_of_Australia)

~~~
stephen_g
Not that I know of, but I think it should be possible because copyrights,
patents and trademarks are one of the areas the Federal Govt are
constitutionally allowed to make laws about (which is the other test apart
from being “on just terms”).

------
gitgud
Fascinating, I had no idea that flag was copyrighted. I guess that's one of
the reasons why there was a push for alternative flag designs a few years ago.

As far as searching for prior art, I would probably look at using a large
data-set like the [1] 2.8 million art images released by the Smithsonian. So
you can process it all locally rather than uses a SAAS api.

Then use something like tensorflow to do the image recognition. Here's a [2]
fun tutorial.

[1] [https://www.smithsonianmag.com/smithsonian-
institution/smith...](https://www.smithsonianmag.com/smithsonian-
institution/smithsonian-releases-28-million-images-public-domain-180974263/)

[2]
[https://codelabs.developers.google.com/codelabs/tensorflow-f...](https://codelabs.developers.google.com/codelabs/tensorflow-
for-poets/)

~~~
thomasfromcdnjs
Ahhh great! Lots of good feedback here but I that dataset is exactly what I
was looking for!

And yes it is a rather peculiar situation, I'm still trying to figure out if
any other flag on the planet is copy righted by an invididual.

------
aaron695
Harold Thomas is an artist who created something and is still fully alive.

He has every dam right to do as he wishes with his own creation.

He has always had copyright and everyone knows this. It's his creation, it
came from him, it's used today exactly as he created, nothing derivative.

If you don't want to respect this you can also shove your GPL or shove your
copyright over books. You show respect what people create or you don't.

To the question, to attack him I'd start searching here -
[https://trove.nla.gov.au/](https://trove.nla.gov.au/) See if you can find
early articles saying how he did it, he might say he copied in part something
or you might be able to twist what he says against him. Track possible artists
or styles over picture search.

~~~
aryonoco
Even if you accept that such a basic shape is copyrightable, it's laughable to
have a national flag that is copyrighted and cannot be freely used. When the
government declared it a national flag, they should have given him a few
million dollars and bought the rights off him. They still can do this easily
since they have eminent domain and it applies to IP as well.

~~~
aaron695
> When the government declared it a national flag, they should have given him
> a few million dollars and bought the rights off him.

But they didn't, so the government can get stuffed.

I love the way you want the government to steal from an indigenous man here.
Haven't they stolen enough yet?

Harold Thomas owns it. It's been recognised he owns it. He can do as he wishes
with it.

If a bunch of people want to continue following something that's owned by
someone else they can, but they follow the creators rules.

Lets just steal Linux off Linus and co because we feel like it shall we.
Remove his stupid GPL v2 because we want to.

------
arjie
Interesting problem. What is the general class of "find this object in other
pictures" called? I've noticed that most image search aims at a different
goal: "find pictures like this picture" so tineye, Google Image Search, and
friends are unlikely to be of use.

By the way, it reminds me of the flag of the Dravida Munnetra Kazhagam (a
party from my home state in India), which coincidentally also uses a Sun
amongst their symbols. I wonder if they've got a version with the Sun on their
flag.

If I were an organization with clout in the field I would propose an
alternative flag, but I imagine people are attached to this one. Well, good
luck!

~~~
8note
Image stitching maybe?

There's probably a good name on one of the SIFT papers if you're also looking
for some algorithms

------
ipi
wow! I was not aware that it is copy-righted. That is shitty at so many
levels. But, genuine questions, what's stopping you guys from designing a new
flag ? Is it the reach of the existing flag or the resources required to
create a new one and spread it again ?

------
toomuchtodo
[https://tineye.com/](https://tineye.com/) might be able to help.

~~~
tomcooks
I'd rather use yandex images
([https://images.yandex.ru](https://images.yandex.ru)), has the best reverse
image search

------
Liveanimalcams
my startup tracks and finds items in videos. I'm sure I can spin up a new
model for you. my email is in my profile

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hooper_
Hey mate,

Good luck with this, I think its a good cause. It finally got me to register
on HN so I could up-vote it :)

------
ThePadawan
There is similar controversy about the Bisexual pride flag (
[https://en.wikipedia.org/wiki/Bisexual_pride_flag#Licensing_...](https://en.wikipedia.org/wiki/Bisexual_pride_flag#Licensing_controversy)
)

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SubiculumCode
I am not an ML expert, so I cannot respond myself, but I am disappointed at
how few responses address the ML aspect of the question.

------
lathiat
Good luck.m

------
hadrien01
Please don't put tracking links in your text

~~~
thomasfromcdnjs
I was just over the character limit so put them in. No intention to use, happy
to switch them to some privacy centric alternative, but I don't know any.

~~~
dang
I've replaced two bit.ly links with the URLs they point to in your text above.
In the future, as gpm points out, you can just use 'edit' to get around the
length restriction.

------
stareatgoats
My two cents: get another flag. It's not even a design that signals Australian
Aboriginal imo tbh, it looks Japanese if anything.

