Flag Rights Journey

‘Clothing the Gap’ is the fashion label of Spark Health, an Aboriginal owned and led health promotion business based in Preston. We sell Aboriginal designed products through ‘Clothing the Gap’ with 100% of the profits supporting the roll out of Aboriginal health promotion programs throughout Victoria independent of government funding. 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 www.change.org/pridenotprofit 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 

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.

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.

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 

 

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. 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, it claimed was directly from 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.”

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.

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

Parliament Excursion

On the 28th of July 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 Thursday 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.

But, 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. 

 

 

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

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

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/6d9ed3b0ef333ef42d4b833d866b7ca2

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