Legal of Use of a State Flag in Art
By J. Bruce Richardson, Esq.
A physical flag, in and of itself, is a piece of fabric. However, once a cultural symbol is put on a piece of fabric, the cloth transforms and carries with it whatsoever cultural significance is found in the original symbol. The flag then becomes equally much a office of cultural holding as the symbol adorned on it. The flag allows the cultural symbol to get portable and more than visible. Some flags, such as those for nations, generally identify with a specific geographic area. For example, flying the Canadian flag on a naval vessel signifies that information technology is subject to Canadian jurisdiction. The Canadian flags flown in embassies around the world tell visitors that they are "amongst Canadians" (embassies are non considered to exist strange soil). All the same, many Canadian expats or tourists put upwards the Canadian flag in their homes, not to identify that they alive on "Canadian soil", only that they have some connection to Canada, as a concept. This concept is not express to national flags, and can employ to other affiliations. Thus, the flag adopted by the descendants of the Acadians flies prominently in areas of the Canadian Maritimes, Louisiana and even in France, even though there is no political entity or government claiming ownership.
There
are a number of flags that are recognized internationally and relish some level of international protection fifty-fifty though they are not national flags, such every bit the Red Cantankerous flag or the Olympic Games flag. Should this list as well include the Pride Flag, a.1000.a. the rainbow flag, which currently does non enjoy protections accorded to other culturally meaning flags? No land or organization has stood up to claim ownership of the Pride Flag. Yet there are arguably few other cultural symbols steeped in as much significance for the LGBTQ (Lesbian, Gay, Bisexual, Transgender, and Queer) community it represents. This symbol is so entrenched with the LGBTQ customs, that its prohibition in some schools, as well equally in some countries is seen every bit a direct barb to the LGBTQ community members, inasmuch the flag's raising is seen as both giving support to the LGBTQ customs and protesting other countries' anti-LGBTQ laws.
Having a symbol and so ingrained with a community begs the question on how people can ensure that such symbols are used accordingly and with the community'due south authorization. How can current constabulary be used to protect such cultural flags against unauthorized use or misappropriation? In that location could be three possible ways, i) international, two) trademark constabulary, or three) copyright law.
International
The Paris Convention for the Protection of Industrial Property provides protection for various official insignia of countries. Paragraph 1(a) of Article 6ter states:
The countries of the Union agree to refuse or to invalidate the registration, and to prohibit by appropriate measures the employ, without authorization by the competent authorities, either as trademarks or equally elements of trademarks, of armorial bearings, flags, and other State emblems, of the countries of the Union, official signs and hallmarks indicating command and warranty adopted by them, and whatsoever false from a heraldic point of view. [Emphasis added]
For the awarding of this provision, paragraph 3(a) states that countries have agreed to communicate "the listing of State emblems" and "official signs and hallmarks" reciprocally through the International Bureau at the World Intellectual Property Organization (WIPO) (which maintains a database of signs given Article 6ter protection). Interestingly, this requirement is absent for state flags, which in essence have automated protection (although communication through WIPO of land flags is not technically required to obtain protection, many member States have called to do so, including Republic of iceland, Republic of cuba, and Kingdom of norway). Paragraph 1(b) extends this protection for the symbols of International Intergovernmental System (IGOs). Some examples of IGO flags are the flag of the World Health Organization and of the Commonwealth of Nations. Unlike the case for Country flags, IGOs are required to notify WIPO of the adoption of their flags in order to benefit from Article 6ter protection.
Why are land flags treated differently? Some say that the colors and symbols of flags "convey the ideas/ambitions/values of the country or system." Others advise that flags volition gradually become a part of a state's heritage. But not all flags are considered to be "country flags". Some flags represent a certain culture or identity that tin be found entirely inside a certain nation or may spread across the globe. The answer may be equally simple that a state is geographically identifiable, equally would be its authorities, so its "possessor" is readily identifiable.
In order to receive international protection under Article 6ter for the Pride Flag, ane of the Member States would have to either claim it every bit its Land flag or as an official symbol. Given the divergent level of LGBTQ rights effectually the world, this does non seem probable or soon in coming. Alternatively, an international convention could exist held to protect this flag, such every bit the case with the Red Cantankerous and Olympic flags. Even so, this would require several countries to agree to hold a diplomatic conference. Given that at that place are over 76 countries with criminal provisions confronting homosexuality, this, too, is unlikely.
Trademark Law
In Canada, and in most common-law countries, rights in a trademark are caused through use in association with appurtenances or services. Although there is some controversy surrounding when and how the rainbow colors began being associated with the LGBTQ community, it is well settled that the commencement time a rainbow flag was used as such was during the San Francisco Pride march in 1978. Of notation, the original pride flag consisted of 8 different coloured stripes. The creator of that first flag, Gilbert Baker, a San Francisco artist, asked a visitor to mass-produce his flag, only was told that i of the colored stripes (the "hot pink" one) was unavailable for mass production, so that color stripe was dropped from the flag. Upon the bump-off of the gay rights activist Harvey Milk, the community in San Francisco looked to the flag to help show strength and solidarity. The indigo stripe was eliminated so that the colors "could be divided evenly along the parade route", resulting in the current six-colored flag. The date of offset utilise of this (six striped) flag is thought to exist 1978. Withal, it is unclear with what goods and services the flag has been associated. Using a flag in a mode to express "strength in solidarity" is not a "apply" of a trademark (every bit plant in section 4 of the Canadian (Trade-marks Act) as required to obtain rights. Considering many companies now incorporate the rainbow flag or symbol within logos to sell goods or annunciate services, information technology cannot exist determined that the rainbow symbol comes from one source. Other companies have incorporated the rainbow colours within existing logos in order to cater to the LGBTQ community, or to requite some level of back up to them. This over-use of the rainbow symbol in commerce renders it not-distinctive and therefore not eligible for trademark protection.
Another possibility for a more defensive protection of the rainbow flag in Canada would exist to view it every bit an official mark. Official marks are available only to public regime, which are entities whose activities i) benefit the public, and 2) are under a significant caste of command by a Canadian government. Similar the situation for Article 6ter marks, information technology would require a Canadian public dominance to make a public notice (by sending a request to the Canadian Intellectual Property Office) that information technology has used and adopted the rainbow flag. Prohibition against the use of an official marks includes the mark itself, or a marking "so nigh resembling" the official marking "as to be likely to be mistaken for" it without authorization. The rainbow flag has not been subject area of a public notice to date.
Copyright Law
Is there copyright in the rainbow flag? Although there are arguments for and against protection, for the purpose of this paper, it is assumed that the requisite originality and fixture are there and so that copyright exists. Every bit the author of this artistic work, Gilbert Baker owns the copyright. This gives him the exclusive right to reproduce the flag in the U.S. and Canada, and in many other countries around the world, and this gives him moral rights besides (particularly in Canada and in the EU). In a 2007 commodity, Bakery claimed that this flag "has no rules" or protocol governing its display. This could be evidence that Baker has waived his rights. Although the copyright to the flag could have been sold (although there is no testify of this), Baker's moral rights in Canada always remain. This could mean that he would be able to terminate the rainbow flag from being used in association with a product, service, cause or institution that is to the prejudice of its author'due south laurels or reputation, or prevent the flag from being "distorted, mutilated or otherwise modified". At that place was a contempo incident in Alberta where rainbow flags were burned. Although police investigated the example, Baker did not prove up in court seeking to enforce his moral rights. The straightforward authorship of the rainbow flag is in stark contrast to the controversy surrounding the cosmos of the bear pride flag, and who was the actual author of the work. 1 of the supposed designers has claimed copyright in the piece of work, although in 2002 he finally waived any rights to the flag (much like Gilbert Baker did with the rainbow flag).
Decision
National flags and flags of international IGOs such as the International Olympic Committee and the Carmine Cantankerous are protected past international agreements, while culturally important flags such as the Pride flag are non. Such cultural flags could be subject matter of copyright or trademark protection, simply that would bestow ownership of these flags to an individual, or a private entity. In the example of the Pride flag, the LGBTQ community would accept to trust that the copyright or trademark possessor would enforce the employ of the flag in such a style that it is beneficial to the community. In this instance, the best answer may be the "blanket license" that the copyright owner has given to the use of the flag. Although it may be possible to grant ownership of a cultural flag to an private or individual entity, this may not exist in the best interest of the civilization/community the flag is intended to represent.
About the Author:J. Bruce Richardson, B.Sc., M.Sc., LL.B, works for the Government of Canada. This article is entirely his own initiative and the content here does not necessarily reflect the views of his employer, office, or position.
Disclaimer: This article is intended as general information, not legal communication, and is no substitute for seeking representation.
Source: https://itsartlaw.org/2014/02/10/flag-as-cultural-heritage/