Indigenous Clothing Label Threatened With Legal Action for Using Aboriginal Flag

An Indigenous clothing label is fighting for their right to use the Australian Aboriginal flag, after a non-Indigenous business bought the exclusive worldwide license on the design. Clothing the Gap, a Victorian Aboriginal-owned brand that works alongside Spark Health and donates 100 percent of its profits toward Aboriginal communities, were served a cease and desist from WAM Clothing for using the flag on their products.

The Australian Aboriginal flag was created by Indigenous artist Harold Thomas, a Luritja man, for an Aboriginal Day march in 1971. In 1997, after the federal government claimed it as “the official flag of the Aboriginal people of Australia”, Thomas gained recognition as the author and owner of the copyright of the design. Last year he sold that copyright to WAM Clothing—and now the business is using it to crack down on Clothing the Gap and prevent them from incorporating the image into their products.

“Did you know that the Aboriginal Flag is copyrighted?⁣” Clothing the Gap posted on their Instagram over the weekend. “Harold Thomas still allows ‘free use to non-commercial operations that give health, educational, legal and other assistance to Aboriginal people’.⁣ However, currently, WAM Clothing hold an exclusive world-wide licensing agreement with the Flag's copyright owner, Harold Thomas, to reproduce the Flag on clothing for sale.⁣

“This is not a question of who owns copyright of the Flag,” the post declared. “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.”

Sianna Catullo, Chief Creative Officer at Clothing the Gap, told VICE that the label was "furious and outraged" at the news.

"Our sales of our merchandise go back into the community, we’re an Aboriginal-owned and led business, and we think that we should have all rights to be able to produce merchandise for our mob and for our community," she said. "By WAM Clothing now having complete licenses over the flag it is tainting and taking away from what that flag used to represent. To me the flag represented my pride and my strength in my identity—but I can’t say that it’s representing that same thing knowing that a questionable non-Aboriginal business… gets to dictate how Aboriginal people choose to celebrate their culture, and that they get to profit off our celebration and our pride in our culture."

In response to to the cease and desist, Clothing the Gap have launched a petition to create “new licensing agreements, especially those for Aboriginal organisations and businesses.” They want “to see the Aboriginal Flag celebrated, shared and worn for #PrideNotProfit as we lobby government and relevant bodies for action.” At the time of writing, the petition had received just over 17,000 signatures.

WAM have provided a statement from Thomas, in which he claimed it was up to him as the designer to decide who could use the Aboriginal flag, The Australian reports. "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," Thomas said.

In response to this statement, Sianna told VICE "we’re not saying that Harold Thomas shouldn’t have rights over the Aboriginal flag; we’re just questioning why he chose WAM Clothing to take the worldwide licensing of the national flag. Why not use an Aboriginal business that is known for using the flag and putting the profits back into the community?"

Spark Health and Clothing the Gap have also been told by US-based fashion retailer GAP INC that they aren't allowed to use the word "gap" in their fashion line.

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