Indigenous affairs minister says designer Harold Thomas has not signed away rights to the flag although he has entered into deal with businessman

This article is more than 1 year old

This article is more than 1 year old

The Indigenous affairs minister, Ken Wyatt, has ruled out the government buying the copyright of the Aboriginal flag from its designer following a dispute that has affected businesses and two major football codes.

After what Wyatt called a “warm and friendly” meeting with designer Harold Thomas in Darwin on Thursday, the minister said the government would not be buying the rights to the flag.

“Mr Thomas shared his and his family’s deep concern to protect the integrity of the flag for all Australians, and reiterated his creative rights to his artwork,” the minister said in a statement.

“The Australian government is not seeking to buy the rights to the flag,” Wyatt said, noting that it is one of our national flags and can be flown freely by anyone. “It resonates strongly and binds people together and Mr Thomas holds the exclusive copyright to the flag. It tells his story as both an artist and an Indigenous person.

Ken Wyatt 'hopeful' of resolving Aboriginal flag copyright dispute Read more

“His main concern is to protect the integrity of the flag and I stand with him on this.”

Copyright of the flag rests with Thomas, after the federal court found he was the sole copyright owner in 1997.

Since then, he has entered into a number of licensing arrangements, most recently with the non-Indigenous-owned company Wam Clothing in November 2018.

Wam Clothing sent notice to at least one company, the Aboriginal-owned social enterprise Spark Health, to stop producing clothing featuring the design and is in “ongoing discussions” with the NRL and the AFL to licence the flag on their jerseys.

A spokesperson for Wam Clothing said the company “has been actively inviting any organisations, manufacturers and sellers who wish to use the Aboriginal flag on clothing to contact us and discuss their options”.

Wam Clothing is part-owned by Queensland businessman Ben Wooster, who has had a long association with Thomas as a licensee of the flag.

Wooster was sole owner of Birubi Art, a now-defunct company found by the federal court to have “made false or misleading representations that products it sold were made in Australia and hand-painted by Australian Aboriginal persons, in breach of the Australian consumer law”.

The Australian Competition and Consumer Commission (ACCC) is seeking a $2m to $2.5m penalty against Birubi Art, to signify the “serious cultural harm” done by fake Aboriginal art.

But the minister said Thomas’s concerns “lie with the unethical use of the flag on souvenirs and in other situations where the flag is not reproduced in a faithful or professional manner, without the knowledge or agreement of him or his family”.

“Mr Thomas made clear that he has not signed away his rights and does not intend to, despite some claims in the media.”

Both Thomas and Wam Clothing have publicly indicated their willingness to talk about options for using or reproducing the image of the flag, the minister said.