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Ask HN: Finding the Australian Aboriginal flag in all artworks
102 points by thomasfromcdnjs 34 days ago | hide | past | favorite | 60 comments
For those who don't know, the Australian Aboriginal flag (https://i.imgur.com/sGsnLkv.png) is actually copy-righted by an individual although it is recognized as a national flag.

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.

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.

I am rather free market orientated and do respect the artists desires.

But, the situation is rather unique, I can't seem to find any other examples in the world of a nations/cultures flag being owned by an individual.

The creator has no intention to relinquish the copyright, so movements have already sprung up.

A good timeline of events can be found here -> https://clothingthegap.com.au/pages/aboriginal-flag-timeline

The page above found an artwork released 4 years prior that contains the visual elements of the flag -> https://i.imgur.com/rKbS2m4.jpg

The flag artist studied European art just before he created the aboriginal flag so he may have already copied it himself.

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.

I am looking for API's and libs that would help me achieve this as I think it is a fun problem.

Regardless, I've used HN for over a decade and have no doubt some of the smartest people on the planet live here.

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.

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.


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

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?

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...

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....

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...

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.


> 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.

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

> 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.

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.

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.

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.

> Also in USA, for instance, copyright is granted for collections, organizations, arrangements or compositions of pre-existing things.

Yes, but you're not copyrighting those pre-existing things in that case, you're copyrighting the collection, organization etc. And if somebody else had done those before, you'll again have a hard time copyrighting it (given that you've copied it).

> Such a photographer can claim copyright on photo of a bridge.

But not of the bridge, which is the pre-existing thing. His photo didn't exist before.

Though photos are, in my opinion (and I'm not a lawyer), one of the really interesting things that I believe make a lot of the issues of our current system of copyright very visible: 100 photographers can stand in the same spot, aim their identical cameras at the same point and make virtually identical photos, and can all, individually, claim copyright on their photo that, if you printed them out and mixed them, they couldn't pick from a line-up.

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 :)

Australian Broadcasting Corporation archives:


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)

Here is a decent summary of the ongoing copyright debate -> https://theconversation.com/explainer-our-copyright-laws-and...

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

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).


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.

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.

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)

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.

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

I don't see any mentions of it.


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”).

Probably longer. Each time Mickey gets close to the end of the countdown, it gets extended by the US government and their crack squad of Disney negotiators.

I know right! It almost like Disney is using some magic (Constant Authorized Side Help (CASH)) to convince the US Gov politicians to keep moving the goal posts.

well, you first have to create a drawing yourself and somehow get a nation state to adopt it as a national flag. Order of events matters.

Like the 'happy birthday' song, if it is not already copyrighted .... and who would copyright their national flag.

Happy birthday is now public domain https://en.m.wikipedia.org/wiki/Happy_Birthday_to_You

Well, technically, the claim was never valid, but I guess it was easier to avoid the song or pay up than it was to take it to court.

A lot of products use the Swiss flag because of this.


> You can't copyright a national flag,

Except maybe the US flag in the US (given the particular US prohibition on copyright of federal government works), I don't see why not; and, actually, if the US were to adopt a private design as the official national flag rather than commission it, I'm not sure it would be a problem even in the US, since other private works adopted as national standards but not created by government in the US remain protected by copyright.

There are certainly ways a private copyright on a national flag is inconvenient, but inconvenient and impossible aren't the same thing.

I know virtually nothing about this topic, but Wikipedia says that the flag "is one of the officially proclaimed flags of Australia", and the page "List of Australian Flags" [0] lists it as a national flag alongside the flag most people would recognize as the Australian flag. It seems plausible to me based on this that the flag is really a national flag for legal purposes.

[0]: https://en.wikipedia.org/wiki/List_of_Australian_flags

Here is the original proclamation -> https://www.legislation.gov.au/Details/F2008L00209

"I, PHILIP MICHAEL JEFFERY, Governor‑General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council and noting the fact that the flag reproduced in Schedule 1 and described in Schedule 2 is recognised as the flag of the Aboriginal peoples of Australia and a flag of significance to the Australian nation generally, appoint that flag, under section 5 of the Flags Act 1953, to be the flag of the Aboriginal peoples of Australia and to be known as the Australian Aboriginal Flag with effect from 1 January 2008."

How is it racist? The designer and person who owns the copyright is aboriginal too.

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...

[2] https://codelabs.developers.google.com/codelabs/tensorflow-f...

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.

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/ 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.

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.

> 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.

Yeah, this is my position.

I want the guy to profit as much as possible, but the flag is pretty much world renowned for Australian Aboriginals at this point.

Having one individual choose how it is used on their own personal whims is a bit much.

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!

Image stitching maybe?

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

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 ?

https://tineye.com/ might be able to help.

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

"Your image is too simple to find matches. TinEye requires a basic level of visual detail to successfully identify matches. Please upload a more detailed image."

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

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 :)

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

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.


This is unnecessarily abusive.

It also ignores the fact that the one who asked the question was hoping for the same thing as SubiculumCode.

Good luck.m

Please don't put tracking links in your text

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.

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.

Just switch them for the full urls.

Editing bypasses the text length restriction.

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

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