WAM Clothing: Inquiry probes copyright issues with Aboriginal flag

The Australian clothing company with an exclusive licence to reproduce the Aboriginal flag on garments has revealed they are made in Bali.

WAM Clothing has an agreement with the flag’s designer and copyright holder Harold Thomas that allows it to issue cease and desist letters to companies using the flag, including the AFL.

A Senate inquiry prompted by a community push to “free the flag” held its first hearing on Monday and will investigate the copyright and ability for the image of the flag to be used freely for all Australians.

WAM Clothing co-founder Semele Moore confirmed the parties were in talks with the National Indigenous Australians Agency about copyright acquisition.

“Harold has requested that those discussions remain confidential,” Ms Moore said.

In the meantime, Ms Moore said organisations wanting to use the flag on jumpers could purchase them from WAM or explore third-party options.

“Our manufacturing is done in Bali, and it’s all printed in Bali as well,” she said.

“Would you like to know why?

“It simply comes down to cost. We are, however, looking at options to manufacture in Australia.”

WAM was founded in 2018 to offer an “authentic range of clothing featuring the Aboriginal flag design”, according to its website.

Ms Moore said it had an “already existing relationship with Harold” when granted the licence but refused to go into more detail.

She said the matter with the AFL was confidential but an agreement was “reached in essence” for the flag’s use, and the AFL chose not to proceed.

WAM Clothing also refused to answer questions about how many cease and desist notices it had issued.

AFL head of legal and regulatory Stephen Meade told the committee the AFL had for many years sought to highlight the extraordinary contribution of indigenous players, especially through the Sir Doug Nicholls round.

“The AFL is concerned that the commercial terms sought by WAM Clothing with respect to the use of the Aboriginal flag by potential users of it may not be reasonable, or may not be affordable by many persons in the community,” he said.

“The AFL is concerned that there will be ongoing decreased use of the Aboriginal flag.”

AFL general manager of inclusion and social policy Tanya Hosch said sport brought people together and could be very unifying for Australians from all walks of life.

“We have a responsibility to be very clear about our respect for first peoples and the flag is one way that we can demonstrate that,” she said.

“To cease doing that, I think, could send a very confusing signal to many people who are still starting to understand what the flag stands for.

“I still get a lot of questions about what the Torres Strait Islander flag stands for, by comparison.

“But I think partly because of the way that the (Aboriginal) flag has been embraced by many facets of society, including sporting codes, so many Australians are much more cognisant of what the flag is and what it stands for.”

Asked about potentially paying an indigenous entity if it had the licence, Ms Hosch said it could be considered with guidance from the AFL’s Aboriginal and Torres Strait Islander advisory council.

“I think the current view of the council is that as an official flag of the country it should be freely available to all,” she said.

Earlier, NSW barrister Michael Green proposed “slicing” up the copyright so the flag could be more freely used.

“It would be possible for the Commonwealth to create a licence in relation to reproduce the flag as a flag or to broadcast images of the flag,” Mr Green said.

“It is possible to do it in that way without the need to go through some heavy-handed creation of new law.

“If Mr Thomas wanted to do this, and it’s really a matter for him to do this, he could do it in regard to other agreements he has granted licences to.”

However, copyright expert Associate Professor Jani McCutcheon warned copyright was just one piece of the puzzle.

“If we free up the use of the flag we are effectively taking away or reducing Mr Thomas’s rights,” she said. “If we want to allow Mr Thomas to retain his rights, we don’t wrench his copyright from him.”

Dr McCutcheon suggested a bespoke scheme could be introduced after speaking to all stakeholders, but she warned it was going to be a “big deal and a difficult process”.

“Smart people with good intentions should be able to mediate a fair outcome … but there would need to be willing participants in that process,” she said.

Arts Law Centre chief executive Robyn Ayres told the committee it was “very unusual” to have a flag that’s been declared a flag of Australia but is privately owned.

“I have concerns because I can see the distress and disquiet it is causing across the Aboriginal community about this issue … there are many non-Indigenous people who have concerns … particularly about the lack of access,” Ms Ayres said.

“I’m also very respectful of the artist’s rights to control their copyright.”

Several experts agreed that the issues surrounding the copyright of the Aboriginal flag were also social, cultural and economic.

Mr Thomas designed the Aboriginal flag in 1971. It was declared a flag of Australia in 1995, and Mr Thomas was recognised as the author by the High Court in 1997.

The AFL, Attorney-General’s Department and National Indigenous Australians Agency were due to appear at the inquiry later on Monday.

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