“ The flag represents much more than just a business opportunity.
It’s been an important symbol to Aboriginal people for a really long time, a symbol of resistance, of struggle of pride, and that’s why we’ve got such a strong attachment.
One ( of the two companies ) is an international worldwide company [pursuing us] for using the word ‘Gap’ and the other is for trying to share our culture.
The purpose of Spark Health is to improve Aboriginal peoples lives.”
Spark Health founder and Gunditjmara woman Laura Thompson spoke to the The Australian and the ABC describing the two-pronged attack after the Koori Mail broke the story
Koori Mail reporter Darren Coyne worked really hard over the past few weeks to break an important story about copyright of the Aboriginal flag : See Page 3 June 5 Edition
Six weeks, six deadly health dares, six workouts, one grouse piece of merch! Spark Health Australia are proud to work with the ACCHOHealth Services team at the Wathaurong Aboriginal Co-Op in Geelong to deliver ‘I Dare Ya’, a six week health and well-being program
An Aboriginal business is fighting for the right to feature the Indigenous flag in its “Clothing the Gap” fashion designs, while also fending off a copyright attack from a global retail giant.
Spark Health, which is an Aboriginal-owned health promotion business, has been told by US-based retailer GAP INC that it cannot use the word “Gap’’ in its fashion line, which plays on the phrase “Closing the Gap’’ that is used to describe the efforts to improve the lives of Aboriginal and Torres Strait Islander Australians.
To add to its woes, the Preston-based profit-for-purpose outfit has been sent a “cease and desist” letter by Queensland-based WAM Clothing over its use of the Aboriginal flag in its clothing designs.
The copyright of the Aboriginal flag is owned by its designer, Harold Thomas, a Luritja man, who has licensed its use in clothing exclusively to WAM.
Ms Thompson said she wrote to Mr Thomas requesting permission to use the Aboriginal flag in August last year.
She said she was happy to pay a fee in order to replicate the design.
An online petition started by Spark Health, criticising the exclusive licensing of the flag to a non-indigenous company, has gathered more than 20,000 + signatures so far.
“This is a question of control,” the petition reads.
“Should WAM Clothing, a non-indigenous business, hold the monopoly in a market to profit off Aboriginal peoples’ identity and love for ‘their’ flag?”
Spark Health director of operations, Sarah Sheridan, who is not indigenous, said WAM was exploiting Aboriginal Australia.
“Non-indigenous Australians must listen to, and support the voices of Aboriginal people and back their self-determination,” she said.
“Rather than exploiting them in the way that WAM clothing currently are.”
A WAM spokesperson said it was obligated to enforce the copyright.
“In addition to creating our own product lines bearing the Aboriginal flag, WAM Clothing works with manufacturers and sellers of clothing bearing the Aboriginal flag — including Aboriginal-owned organisations — providing them with options to continue manufacturing and selling their own clothing ranges bearing the flag, which ensures that Harold Thomas is paid a royalty,” the spokesperson said.
WAM provided a statement from Mr Thomas, in which he said, as the designer, it was up to him to decide who could use the Aboriginal flag.
“As it is my common law right and aboriginal heritage right … I can choose who I like to have a licence agreement to manufacture and sell goods which have the Aboriginal flag on it,” he said.
WAM Clothing was co-founded by Ben Wootzer, whose previous company Birubi Art was found to be in breach of Australian consumer law after selling over 18,000 Aboriginal such as boomerangs and didgeridoos were in fact made in Indonesia.
GAP Inc did not respond to The Australian’s request for comment.
New licence owners of Aboriginal flag threaten football codes and clothing companies
Indigenous reporter Isabella Higgins
The Aboriginal flag is unique among Australia’s national flags, because the copyright of the image is owned by an individual.
A Federal Court ruling in 1997 recognised the ownership claim by designer Harold Thomas.
The Luritja artist has licensing agreements with just three companies; one to reproduce flags, and the others to reproduce the image on objects and clothing.
WAM Clothing, a new Queensland-based business, secured the exclusive clothing licence late last year.
Since acquiring it, the company has threatened legal action against several organisations.
The ABC understands WAM Clothing issued notices to the NRL and AFL over their use of the flag on Indigenous-round jerseys.
A spokesman for the NRL said the organisation was aware of the notices, but would not comment further.
The ABC has contacted the AFL, but no official response has been received.
WAM Clothing said simply it was “in discussions with the NRL, AFL and other organisations regarding the use of the Aboriginal flag on clothing”.
The Aboriginal flag has been widely used on the country’s sporting fields, carried by Cathy Freeman in iconic moments at the 1994 Commonwealth Games and 2000 Sydney Olympics.
It only became a recognised national flag in 1995 under the Keating government, but had been widely used by the Aboriginal community since the 1970s.
The Torres Strait Islander flag was also recognised as a national flag at this time, but the copyright is collectively owned by the Torres Strait Regional Council.
The move to adopt both flags as symbols of state was somewhat controversial at the time, with the then opposition leader John Howard opposing the move.
Former head of the Australian Copyright Council Fiona Phillips said there could be an argument for the Government or another agency buying back the copyright licence from Mr Thomas.
“The fact that the flag has been recognised since 1995 as an official Australian flag takes it out of the normal copyright context and gives it an extra public policy element,” she said.
She said it was an image of significance to a large part of the nation and it was important there was some control to avoid potential exploitation.
“It’s quite unusual for copyright to be held by an individual and controlled by an individual rather than a government or statutory authority who, maybe for policy reasons, has other interests in mind,” Ms Phillips said.
“There has to be a way that Mr Thomas can be remunerated fairly but where other people can also have access to the flag.”
Fight to stop flag ‘monopoly’
A Victorian-based health organisation, Spark Health, which produces merchandise with the flag on it, was issued with a cease and desist notice last week and given three business days to stop selling their stock.
The flag represents much more than just a business opportunity, the organisation’s owner, Laura Thompson said.
“It’s been an important symbol to Aboriginal people for a really long time, a symbol of resistance, of struggle of pride, and that’s why we’ve got such a strong attachment,” Ms Thompson said.
The organisation started an online petition, that has attracted about 13,000 signatures, calling on Mr Thomas to stop the exclusive licensing arrangements.
“We want flag rights for our people, we’ve fought enough, we’ve struggled, we don’t want to struggle to use our flag now,” Ms Thompson said.
“We don’t want anyone to have a monopoly over how we use the Aboriginal flag. The fact they’re a non-Indigenous company doesn’t sit well with me.
WAM Clothing said it would work with all organisations, and provide them with options to continue manufacturing their own clothing ranges bearing the flag.
“WAM Clothing has obligations under its Licence Agreement to enforce Harold Thomas’ Copyright, which includes issuing cease and desist notices,” a spokeswoman for the company said.
Mr Thomas said it was his “common law right” to choose who he enters licensing agreements with.
Wiradjuri artist Lani Balzan designed the NRL’s St George Illawarra Indigenous jersey for four years.
She said it was a disappointing development and will make her reconsider her designs for the football club and other institutions in the future.
“Schools, when they buy their uniforms through me, we put the Torres Strait and the Aboriginal flag on both shoulders, so I don’t know if we will be allowed to do that anymore,” she said.
“It’s not just the flag, it’s what represents them and our culture and who we are, to have some non-Indigenous company get copyright, it’s really upsetting.
“It’s disappointing because it’s coming down to money and the flag doesn’t represent money, it represents us as Aboriginal people, and our culture and who we are.”
Conduct of WAM director’s former business ‘unacceptable’
One of the directors of WAM Clothing, Benjamin Wooster, is the former owner of the now defunct Birubi Arts, a company taken to court over its production of fake Aboriginal art.
In October last year, the Federal Court found Birubi Arts was misleading customers to believe its products were genuine, when in fact they were produced and painted in Indonesia.
At the time, the Australian Competition and Consumer Commission said Birubi’s conduct was “unacceptable”.
Weeks later Birubi Arts ceased operating, and the next month the director and a new partner opened a new business, WAM Clothing.
Birubi Arts company sold more than 18,000 fake boomerangs, bullroarers, didgeridoos and message stones to retail outlets around Australia between July 2017 to November 2017.
The case is due before court again this week, for a penalty hearing, which some lawyers expect could see a hefty fine handed down that could run into the millions.
The company is now in the hands of liquidators, and the ABC understands it “doesn’t have any capacity” to pay further debts.
The director of WAM Clothing is also in charge of another company, Giftsmate, which has the exclusive licence with Mr Thomas to reproduce objects with the Aboriginal flag on it.
Mr Thomas reiterated his support for all the companies he worked with.
“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,” Mr Thomas said.
“I have done this with Carroll & Richardson [flag licensee], Gifts Mate and the many approvals I’ve given to [other] Aboriginal and Non-Aboriginal organisations.”
We’ve always said that our products are conversation starters. We never thought as tiny little Aboriginal-led business that we’d come under scrutiny for celebrating the Aboriginal Flag or using the word ‘gap’ in our name as we try to self-determine our futures while we work towards adding years to peoples lives.