Flag Rights Journey

Clothing the Gap is an Aboriginal owned and led social enterprise and fashion label that is based in Preston.

We commit 100 percent of our profits to support health promotion activities in Aboriginal communities. 

We never realised the conversation and debate that we would create, once we placed our Aboriginal flag on our tee!  

Did you know the Aboriginal flag was copyrighted?

Well it is, and we have been served a 'Cease and Desist' notice from WAM Clothing for celebrating the Aboriginal Flag on our 'Clothing the Gap' products we were given 3 working days to sell all our flag stock. Otherwise, we faced legal action.

Currently, WAM Clothing hold an exclusive world-wide licensing agreement with the Flag's copyright owner, Harold Thomas, to reproduce the Flag on clothing. This is not a question of who owns copyright of the Flag. This is a question of control.  Should WAM Clothing, a non-indigenous business, hold the monopoly in a market to profit off Aboriginal peoples' Identity and love for 'their' flag? 

We believe that this control of the market by a non-indigenous business has to stop. Viable channels for new licensing agreements, especially those for Aboriginal organisations and businesses, must be created.  Unite with us to #FreeTheFlag and see the Aboriginal Flag  celebrated, shared and worn for #PrideNotProfit as we lobby government and relevant bodies for action.

 

Photo: Sianna Catullo (Chief Creative Officer, Clothing The Gap)

How Can I Help?

1. Sign and share the Pride Not Profit petition

2. Write to your local Member of Parliament, download the ministerial letter template. Don't forget to copy (cc) in to the email hello@clothingthegap.com.au  and ken.wyatt.mp@aph.gov.au  

3. Raise awareness and have conversations about the Free The Flag movement.

4. Show your support by wearing your values on your tee and reppin' some Free The Flag merchandise

5. Consider switching out the Aboriginal Flag [-o-] with the Free The Flag logo available for free download.

How this Started?

Cease and Desist

We were served a 'Cease and Desist' from WAM Clothing on the 6 June, 2019 for celebrating the Aboriginal Flag on these 'Clothing the Gap' products and given three days to stop selling our merch.

Due to the Cease and Desist, we were no longer able to sell these products on our website:

Illegal Clothing The Gap Aboriginal Flag products

Photos of our illegal products (L-R): Our NAIDOC hoodie with all the mob names in the background, our flag tee (even though we thought we had sufficiently altered the original flag design) and our flag beanie. 

WAM Clothing 

WAM Clothing hold the exclusive world-wide licensing agreement with the Aboriginal Flag's copyright owner, Harold Thomas, to reproduce the Flag on clothing, physical media and digital media. We wrote to Harold Thomas in August of 2018 to ask for permission to enter a licensing agreement to use the Flag on clothing, however we received no reply.

Photo: (L-R) Ben Wooster  (WAM Clothing, Birubi Arts and Giftsmate), Harold Thomas (Flag Artist) and Semele Moore (WAM Clothing).

WAM Clothing has since extended it's exclusive licensee to include physical and digital media! 

Sharing On Our Socials

The following day after receiving our letter, we went to the public via our social media to share our story and experience.

Our Petition Goes Nuts

Our #PrideNotProfit petition gathered momentum quickly and we are now up to nearly 50,000 signatures of support.

Media Storm

The small team at Spark Health Australia did lots of media including appearing on SBS, ABC, The Australian, the Age, NITV, and on The Project, discussing who Owns The Aboriginal Flag? 

Laura Thompson on Channel Ten, The Project TV 

 

Lawyers galore and taking on The GAP

We were really surprised by how many intellectual property law firms reached out to support us after the media storm by offering to work pro-bono on the Aboriginal flag copyright issue. It was the vibe and energy we received from the team from the very beginning that helped us decide to work alongside FAL Lawyers on this issue. FAL Lawyers also agreed to work with us on a pre-existing trademark dispute against GAP Clothing .GAP clothing Clothing The Gap Laura Thompson Sarah Sheridan

Photo: (L-R) Laura Thompson and Sarah Sheridan (founders of Spark Health and Clothing The Gap).

Gap Inc. owns the rights to the word “Gap,” so the company was acting within its rights to send the cease-and-desist notice to us because we used the word "Gap" in our branding 'Clothing The Gap'. Obviously, our name is a play on the Australian government initiative "Closing the Gap" but, this trademark dispute continues with this billion-dollar U.S. clothing giant and we will challenge them in the tribunal mid year, 2020 with the support of FAL Law. 

Read more: Aboriginal firm denied right to use flag and use of word 'gap'

Peter Francis and his team from FAL Lawyers have been on this journey with us since June, 2019. We are incredibly grateful to this firm not just on our behalf of Clothing The Gap but, on behalf of Aboriginal people across the country for their work and efforts to help free the Aboriginal flag for all Aboriginal people.

Peter Francis John Faine Laura Thompson Sarah Sheridan

Photo: Laura Thompson, Peter Francis (FAL Law), Jon Faine (ABC Radio), Sarah Sheridan (Clothing The Gap).

FAL Lawyers

WAM Clothing, Ben Wooster and Fake Aboriginal Art

The #PrideNotProfit petition's support grew, questioning why WAM Clothing, a non-Indigenous business, hold the monopoly in a market to profit off Aboriginal peoples' Identity and love for 'their' flag? We believe that this control of the market by a non-Indigenous business has to stop and that the flag should be free for all to use and celebrate without fees or royalties. Even more unsettling is the fact that Birubi Arts (recently fined $2.4m by the ACCC for dealing in fake Aboriginal Art) and WAM Clothing share Ben Wooster as a Director. Wooster has a clear history of exploiting culture and identity for his own financial gain.

Photo: Lena Charles, Sarah Sheridan, Laura Thompson, Nova Peris, Destiny Peris and Jessica Peris.

Harold Speaks Out

Harold Thomas, Luritja artist and copyright owner of the Aboriginal flag had been quiet in the media in frenzy other than speaking with CAAMA Radio in Darwin on the 24 June, 2019 after he meet with Minister Ken Wyatt on 20 June, 2019. He responds to his critics and is clearly fired up about the personal attacks on his credibility through social media since the petition started. He also without mentioning names in the interview, made untoward comments about Laura Thompson, who is leading the Free The Flag campaign and questioned her Aboriginal identity and connection to Community. He also called everyone who signed the petition "foolish". 

The CAAMA interview lasts approx. 25 minutes however, it's worth a listen to gain some insights into Harold Thomas's perspectives on the issue.

WAM Clothing also released a statement on the 11 June after Laura appeared on Chanel Ten, The Project TV. They claimed it was directly from Harold Thomas: “As it is my common law right and Aboriginal heritage right, as with many other Aboriginals, I can choose who I like to have a licence agreement to manufacture goods which have the Aboriginal flag on it.

“It’s taken many years to find the appropriate Australian company that respects and honours the Aboriginal flag meaning and copyright and that is WAM Clothing. I have done this with Carroll & Richardson, Gifts Mate and the many approvals I’ve given to Aboriginal and Non-Aboriginal organisations who have deep interest in the Aboriginal plight.

The Aboriginal Flag is doing its job as it was intended to do, to bring unity and pride to all aboriginals. At times we get the few who snigger and are disenchanted. I can’t satisfy all black people who wish to break up the Aboriginal unification."

Photo: Harold Thomas courtesy CAAMA Radio.

Free The Flag Movement Begins

However, this fight has become much bigger than us being able to sell a t-shirt and the #FreeTheFlag movement was born. With small Community sporting clubs and major sporting codes alike being served their own ‘Cease and Desist’, and the Aboriginal Flag disappearing due to the extra costs and process in having it on uniforms,  this is about equal access and rights to the Aboriginal flag for Community. The Aboriginal Flag was proclaimed as a National Flag of Australia in 1995 and we believe it should be treated and be able to be used like all over national world flags.

Unfortunately, we are in danger of our flag disappearing and becoming meaningless and at the state-wide Aboriginal sports carnivals this year, there are less teams with the flags on their uniforms and some have chosen to replace the flag with the Free The Flag logo because the 20% WAM fee from many Community organisation and sporting teams is too hefty. Read more about sporting codes and the Aboriginal flags on our blog.

Photo: Laura Thompson, Sharni Wellington (NITV), Nova Peris, Michael Connolly.

Parliament Excursion

On the 28July 2019, Laura Thompson, Nova Peris and Michael Connolly from Dreamtime Kullilla-Art travelled to Canberra to lobby politicians and the ‘PrideNotProfit’ petition was tabled by our local Labor MP Ged Kearney in the Senate with over 47,000 signatories. Ged called on the Government to action this and to use all available means to Free the Flag.

The Senate Motion

Our advocacy was successful and during the Senate debates regarding Indigenous Australians a motion about the Aboriginal flag copyright was passed  on 1 August, 2019 by Senators Siewert, Hanson Young and Dodson that:

(a) notes:

(i) that, in 1995, the Aboriginal Flag was recognised as a 'flag of Australia' under the Flags Act 1953

(ii) that the designer of the Aboriginal flag owns the flag's copyright and has licensed the rights to use the flag on garments to a company which is now requiring people to ask for permission to use the emblem and pay a fee, 

(iii) that the license has now been expanded to physical and digital media, 

(iv) that many First Nations communities feel they are at the mercy of a company seeking to profit from their flag and

(v) the concerns in many First Nations communities that their flag is licensed to a company; and 

(b) recognises that the Aboriginal flag is one of Australia's national symbols and a central part of first people's National identity and that the flag should be about people and pride not profit; and

(c) calls on the Federal Government to do everything they can to ensure that all First Nations peoples and communities can use the flag whenever they want without cost or the need for consent.

ATSIC Flag License and Senate Flag Discussion

Laura Thompson attending the unveiling of Nova Peris portrait on the 16 Oct, 2019 at Parliament house and ran into Senator Rachel Siewart (The Greens) at the event. 

 

Photo: Nova Peris & Laura Thompson with her portrait painted by Yorta Yorta & Dja Dja Warung artist, Jandamarra Cadd. 

Senator Siewart asked "how she can help the Free The Flag campaign?" We spoke briefly about the old ATSIC agreement and license to use the Aboriginal flag and this legend replied, she will ask for this document during the Senate Estimates. 

Photo: Nova Peris, Senator Siewart & Laura Thompson

On the 25 October, Senator Siewart worked her magic and asked some brilliant questions alongside, Senator Jenny McAllister (Labour) to the newly formed National Indigenous Australians Agency staff (NIAA) CEO, Mr Ray Griggs and Program Manager, Ryan Bulman in the video clip below from the Senate Estimates parliamentary sitting.

These questions were about the higher purpose of the flag and the current government's policy objectives about the Aboriginal flag copyright and licensees. 

The ATSIC Agreement with Harold Thomas was tabled as a result. 

Nova continues to use her voice to talk about OUR flag

On Nov 16 2019, Nova Peris won the Dreamtime Awards Lifetime Achievement Award. She delivered a first class speech and finished off by talking passionately about the Aboriginal Flag. She said “This is OUR flag, we have had an implied license since it was flown in 1972 at the Tent Embassy”. These were powerful words by Nova Person who is not giving up until the flag is free.

Video: This is a small snippit of Nova Peris's speech when she was awarded Life Time Achievement Award at the Dreamtime Awards.

Thomas licenses rights to WAM Clothing for a $20,000 lump sum plus royalties over 10 years

In the article, 'Tempers Fray as Flag Fight Unfurls' published by Leisa Scott in The Courier Mail on 18 Jan, 2020 it reveals for the first time the details of the contract between WAM Clothing and Harold Thomas. WAM Clothing was established in Nov 2018 and signed a worldwide exclusive agreement with Harold Thomas for the use of the Aboriginal flag on Clothing.

What we didn't know was, Harold licensing agreement with WAM Clothing was for a $20,000 lump sum plus royalties over 10 years. Yep, you read it right $20k plus royalties for 10 years! 

Link to article below in the Reference List by Liesa Scott from The Courier. 

The audacity of WAM Clothing 

WAM Clothing has produced an ‘Always Was, Always Will Be’ tee for the NAIDOC 2020 theme but, it looked almost identical to the Carla Scotto one we sell at Clothing The Gap.

WAM and Carla Scotto Always Was CLothing The Gap tee Photo: L-R WAM Clothing tee, Clothing The Gap Tee.

It’s ironic that WAM Clothing (a non- Indigenous company) is copying someone else’s artwork and profiting of it yet, they have issued so many Cease and Desist letters to Indigenous companies and organisations for using the Aboriginal flag.

Carla Scotto reached out to us at Clothing The Gap after we were issued with a Cease and Desist from WAM Clothing for using the Aboriginal Flag products. 

Statement for Carla Scotto, "My partnership with Clothing The Gap is something I chose and initiated, I wanted to give back to an organisation that directly supported Indigenous health at a grassroots level, and I wanted a means of ‘paying the rent’. Since giving Clothing The Gap (an Aboriginal owned and led business) permission to use my design exclusively on merchandise, I have had the joy of seeing my work truly serve a purpose. I never imagined or wanted a business like, WAM Clothing to benefit financially or rip off my artwork and Aboriginal community."

This design from Carla, we saw as an alternative to using the Aboriginal flag until it free from copyright and it’s our best seller. . Check our Carla Scotto x Clothing The Gap tees. We have since entered into a legal exclusive licensing agreement with Carla Scotto for this artwork and have sent WAM Clothing a Cease and Desist demanding they stop selling products resembling Carla's artwork immediately! 

The Koori Mail Clothing The Gap Laura Thompson WAM CLothing Carla Scotto

Photo: Carla Scotto (artist) and Laura Thompson

Read more from Darren Coyne at The Koori Mail.

 

Flag World threaten to sue for reworked [-o-] flag

Non-Indigenous company Carroll & Richardson Flagworld have had an exclusive worldwide license for using the image of Aboriginal flag on physical flags, such as the those you would see on a flag pole, for over 20 years (since 1998)!  They are now seeking to sue operators of the Free The Flag website for an 'alleged copyright infringement for selling flags featuring a reworked version of the Aboriginal flag' with a solid yellow outline of Australia in the middle instead of a yellow circle. One of the flags features the words "Free the Flag" in the centre of the Australia outline.

For clarity, Clothing The Gap are not the operators of the Free The Flag website nor the creator of these designs. 

Flag World Carrol and Richardson CLothing The Gap

The Judge in the Federal Court Case says "The [flags sold by Free the Flag] ... are not the same as the Aboriginal flag, but that does not show that Flag World may not have a right to obtain relief," he said. 

This case has potential impacts on the Free The Flag campaign and could set a legal precedence around what is and is not a variation of the copyrighted Aboriginal Flag. Watch this space!

Aboriginal Flag Timeline

The good fight to free the Aboriginal Flag has just begun and there is still much work to be done and we need you to keep supporting us.  

Aboriginal Flag Timeline

For a more detailed history and timeline of the journey to free the Aboriginal flag click here.

 

Further information about Clothing The Gap and the copyright of the Aboriginal flag:

Allam, L. (2019, June 12). Government could buy Aboriginal flag copyright to settle dispute, lawyer says . Retrieved from The Guardian: https://www.theguardian.com/australia-news/2019/jun/12/government-could-buy-aboriginal-flag-copyright-to-settle-dispute-lawyer-says

Butler, G. (2019, June 11). Indigenous Clothing Label Threatened With Legal Action for Using Aboriginal Flag. Retrieved from Vice: https://www.vice.com/en_au/article/qvaz45/tinder-and-massage-parlours-are-ruining-queenslands-brothel-trade

Darren, C. (2019, Oct 23). Flag in a Flutter. The Koori Mail.

Darren, C. (2020, March, 25). WAM Clothing accused of ripping off design. The Koori Mail. Edition 722. Page 1 and 5.

Federal Court of Australia, 20 March 2020, Carroll & Richardson - Flagworld Pty Ltd v PayPal Australia Pty Limited [2020] FCA 371. Available from: https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2020/2020fca0371

Foster, A. (2019, June 12). Indigenous companies told to stop using the Aboriginal flag over copyright issues. Retrieved from News: https://www.news.com.au/finance/business/retail/indigenous-companies-told-to-stop-using-the-aboriginal-flag-over-copyright-issues/news-story/3bfa291a8cee5c71b7a00344ed3ba1fc

Jenkins, K. (2019, June 12). Aboriginal businesses and major sporting codes have been told to stop using the Aboriginal flag on their clothing designs because of a copyright-use agreement. Retrieved from SBS News: https://www.sbs.com.au/news/indigenous-companies-told-they-can-t-use-the-aboriginal-flag-over-copyright-concerns

Leisa, S. (2020, Jan 18). Temper fray as flag fight unfurls. Courier Mail. Weekend Insight page 41-42. Article page 41. Article page 42.

Perkins, M. (2019, June 11). 'Free the flag': Aboriginal businesses told not to use Aboriginal flag over copyright. Retrieved from Sydney Morning Herald: https://www.smh.com.au/national/free-the-flag-aboriginal-businesses-told-not-to-use-aboriginal-flag-over-copyright-20190611-p51wkn.html

Varga, R. (2019, June 11). Aboriginal firm denied right to use flag and use of word 'gap'. Retrieved from The Australian: https://www.theaustralian.com.au/nation/aboriginal-firm-denied-right-to-use-flag-and-use-of-word-gap/news-story/6d9ed3b0ef333ef42d4b833d866b7a2

Whitbourn, M. 23 March 2020, Copyright fight brews over sale of Aboriginal flags. Retrieved from Sydney Morning Herald. Available from: <https://www.smh.com.au/national/copyright-fight-brews-over-sale-of-aboriginal-flags-20200320-p54c8l.html?fbclid=IwAR3161s4_EO7BYIUNsek2VtDC7ips_z7mn8cJT3uC2q_CI8s7758NGJh6rI

Further information about WAM Clothing and links to Birubi arts:

Allam, L. (2019, June 11). Company that holds Aboriginal flag rights part-owned by man prosecuted for selling fake art . Retrieved from The Guardian: https://www.theguardian.com/australia-news/2019/jun/11/company-that-holds-aboriginal-flag-rights-part-owned-by-man-prosecuted-for-selling-fake-art

Perkins, M. (2019, June 26). Court slaps $2.3 million fine on company selling fake Aboriginal art. Retrieved from Sydney Morning Herald: https://www.smh.com.au/national/court-slaps-2-3-million-fine-on-company-selling-fake-aboriginal-art-20190626-p521gi.html

Further information about the background of the Aboriginal Flag:

Gallois, M. (2017, March). Doctor of Philosophy: The Aboriginal Flag PHD. Sydney College of Arts. Retrieved from Mathieu Gallois website: http://mathieugallois.com/phd-on-the-aboriginal-flag/

Behind The News. (2019, June 18). The Aboriginal Flag. Retrieved from ABC: https://www.abc.net.au/btn/classroom/aboriginal-flag-debate/11205394

Burton, T. (2005). Tjuringa Dreaming Revolutionary Flags Of The Australian Aboriginals Heralds of Change 1971- 1997. Comunicaciones del Congreso Internacional de Vexilología XXI Vexilobaires.

Part 1:   http://internationalcongressesofvexillology-proceedingsandreports.yolasite.com/resources/21st/ICV21_Burton%20part%201.pdf

 Part 2:   http://internationalcongressesofvexillology-proceedingsandreports.yolasite.com/resources/21st/ICV21_Burton%20part%202.pdf

Jopson, D. (1994, Sept 3). Aboriginal Flag Has Many Roles Says Designer. Sydney Morning Herald. Retrieved from AusFlag: https://www.ausflag.com.au/harold_thomas.asp