Company that holds rights to flag refuses to publicly define the extent of its licences

This article is more than 1 year old

This article is more than 1 year old

The non-Indigenous company that controls how the Aboriginal flag is used on clothing has refused to define publicly the extent of its licences, leaving Indigenous health, legal and other non-profit organisations in the dark about whether they are exempt from fees.

The company, Wam Clothing, has extended its licensing agreement with the designer, Harold Thomas, to include “digital and physical media”.

But because the deal is confidential, it is increasingly unclear whether anyone who now uses the symbol will have to pay a fee.

In a statement the company said “any exemption is at the discretion of Wam Clothing”.

“Any organisations who wish to understand what Wam Clothing’s licences include, are invited to contact us.”

Indigenous charity forced to pay $2,200 to use Aboriginal flag on T-shirts Read more

In August, Wam Clothing charged the Indigenous Wellbeing Centre in Bundaberg $2,200 to use the flag on T-shirts it had given to patients who came into the clinic for a preventive health check.

The IWC, which is an Aboriginal non-profit health organisation, initially sought a discount because it was an Indigenous charity. It later demanded its money back and sought clarification that it could use the flag “into the future without payment of royalties”.

Wam Clothing would not agree to a refund “as requested and reiterate that if you wish to use the Aboriginal Flag on clothing, we will arrange permission with you on the terms previously offered”.

It had calculated the fee at 20% of the cost price of the batch of T-shirts the IWC had already given out. In correspondence, Wam said 20% was “a flat percentage applied across the board”.

“I almost fell off my chair when they said 20%,” IWC’s Janette Young said. “I thought they’d say, ‘OK, you’re a charity.’ I thought they’d give us an exemption.”

Wam Clothing offered to reduce the fee to 15%, while also asking the charity to sign a confidentiality agreement.

But the IWC calculated that continuing to use the design would cost it between $8,000 and $10,000 a year. Instead it paid the fee and has since removed the flag from the T-shirts itoffers.

A spokesperson for Wam Clothing said the IWC had asked for a discount not an exemption.

A copy of a 2018 agreement which appears to be between Wam Clothing and Harold Thomas, seen by Guardian Australia, noted the design may be used by Aboriginal people for non-profit purposes.

According to the document, signed in November, Thomas received a one-off payment from Wam Clothing and was entitled to a royalty on any items Wam sold featuring his design.

• Sign up to receive the top stories from Guardian Australia every morning

Wam Clothing has said the terms of any licence agreements are confidential and legally privileged and only for the benefit of the parties to that agreement. They said the documents seen by Guardian Australia may have been fraudulently created.

It now says it is the “exclusive worldwide licensee for the use of the Aboriginal flag on digital media and physical media”.

In mid-August, the company issued a “cease and desist” notice to the creator of a Facebook discussion page called “New Aboriginal flag or flags discussion” because its “use of the digital image of the Aboriginal flag on social media platforms are [sic] being used in a negative light”.

This month the Senate passed a motion calling on the government to do all it could to “ensure that all First Nations peoples and communities can use the flag whenever they want without cost or the need for consent”.

Wam Clothing and Harold Thomas declined to comment further.

