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 whatever cultural significance is found in the original symbol. The flag then becomes as much a part of cultural property as the symbol adorned on it. The flag allows the cultural symbol to become portable and more 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 it is subject to Canadian jurisdiction. The Canadian flags flown in embassies around the world tell visitors that they are “amongst Canadians” (embassies are not considered to be foreign soil). However, many Canadian expats or tourists put up the Canadian flag in their homes, not to identify that they live on “Canadian soil”, but that they have some connection to Canada, as a concept. This concept is not limited to national flags, and can apply 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 enjoy some level of international protection even though they are not national flags, such as the Red Cross flag or the Olympic Games flag. Should this list also include the Pride Flag, a.k.a. the rainbow flag, which currently does not enjoy protections accorded to other culturally significant flags? No country 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 community, that its prohibition in some schools, as well as in some countries is seen as a direct affront to the LGBTQ community members, inasmuch the flag’s raising is seen as both giving support to the LGBTQ community and protesting other countries’ anti-LGBTQ laws.
Having a symbol so ingrained with a community begs the question on how people can ensure that such symbols are used appropriately and with the community’s authorization. How can current law be used to protect such cultural flags against unauthorized use or misappropriation? There could be three possible ways, 1) international, 2) trademark law, or 3) copyright law.
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 use, without authorization by the competent authorities, either as trademarks or as elements of trademarks, of armorial bearings, flags, and other State emblems, of the countries of the Union, official signs and hallmarks indicating control and warranty adopted by them, and any imitation from a heraldic point of view. [Emphasis added]
For the application of this provision, paragraph 3(a) states that countries have agreed to communicate “the list 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 automatic protection (although communication through WIPO of state flags is not technically required to obtain protection, many member States have chosen to do so, including Iceland, Cuba, and Norway). Paragraph 1(b) extends this protection for the symbols of International Intergovernmental Organization (IGOs). Some examples of IGO flags are the flag of the World Health Organization and of the Commonwealth of Nations. Unlike the case for State flags, IGOs are required to notify WIPO of the adoption of their flags in order to benefit from Article 6ter protection.
Why are state flags treated differently? Some say that the colors and symbols of flags “convey the ideas/ambitions/values of the country or organization.” Others suggest that flags will gradually become a part of a country’s heritage. But not all flags are considered to be “country flags”. Some flags represent a certain culture or identity that can be found entirely within a certain nation or may spread across the globe. The answer may be as simple that a country is geographically identifiable, as would be its government, so its “owner” is readily identifiable.
In order to receive international protection under Article 6ter for the Pride Flag, one of the Member States would have to either claim it as its State flag or as an official symbol. Given the divergent level of LGBTQ rights around the world, this does not seem likely or soon in coming. Alternatively, an international convention could be held to protect this flag, such as the case with the Red Cross and Olympic flags. However, this would require several countries to agree to hold a diplomatic conference. Given that there are over 76 countries with criminal provisions against homosexuality, this, too, is unlikely.
In Canada, and in most common-law countries, rights in a trademark are acquired through use in association with goods 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 first time a rainbow flag was used as such was during the San Francisco Pride march in 1978. Of note, the original pride flag consisted of eight different coloured stripes. The creator of that first flag, Gilbert Baker, a San Francisco artist, asked a company to mass-produce his flag, but was told that one of the colored stripes (the “hot pink” one) was unavailable for mass production, so that color stripe was dropped from the flag. Upon the assassination 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 first use of this (six striped) flag is thought to be 1978. However, it is unclear with what goods and services the flag has been associated. Using a flag in a way to express “strength in solidarity” is not a “use” of a trademark (as found in section 4 of the Canadian (Trade-marks Act) as required to obtain rights. Because many companies now incorporate the rainbow flag or symbol within logos to sell goods or advertise services, it cannot be 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 give some level of support to them. This over-use of the rainbow symbol in commerce renders it non-distinctive and therefore not eligible for trademark protection.
Another possibility for a more defensive protection of the rainbow flag in Canada would be to view it as an official mark. Official marks are available only to public authorities, which are entities whose activities 1) benefit the public, and 2) are under a significant degree of control by a Canadian government. Like the situation for Article 6ter marks, it would require a Canadian public authority to make a public notice (by sending a request to the Canadian Intellectual Property Office) that it has used and adopted the rainbow flag. Prohibition against the use of an official marks includes the mark itself, or a mark “so nearly resembling” the official mark “as to be likely to be mistaken for” it without authorization. The rainbow flag has not been subject of a public notice to date.
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 so that copyright exists. As 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 as well (particularly in Canada and in the EU). In a 2007 article, Baker 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 evidence of this), Baker’s moral rights in Canada always remain. This could mean that he would be able to stop the rainbow flag from being used in association with a product, service, cause or institution that is to the prejudice of its author’s honor or reputation, or prevent the flag from being “distorted, mutilated or otherwise modified”. There was a recent incident in Alberta where rainbow flags were burned. Although police investigated the case, Baker did not show 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 creation of the bear pride flag, and who was the actual author of the work. One of the supposed designers has claimed copyright in the work, although in 2002 he finally waived any rights to the flag (much like Gilbert Baker did with the rainbow flag).
National flags and flags of international IGOs such as the International Olympic Committee and the Red Cross are protected by international agreements, while culturally important flags such as the Pride flag are not. Such cultural flags could be subject matter of copyright or trademark protection, but that would bestow ownership of these flags to an individual, or a private entity. In the case of the Pride flag, the LGBTQ community would have to trust that the copyright or trademark owner would enforce the use of the flag in such a way that it is beneficial to the community. In this case, 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 individual or private entity, this may not be in the best interest of the culture/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 advice, and is no substitute for seeking representation.