Copyright and flags

I recall that the Australian aboriginal-ethnic-group flag (red over black with yellow sun centered) was copyrighted. I understood that the intent of this move was to prevent commercial exploitation ... which may indeed be a very good idea.

Flags are symbols that verge on the sacred -- or can one coin a term, the "secularly sacred"? The small-d democrat in me recoils at the thought of copyright restrictions on such a "people's symbol" and it is certainly rare that flags are copyrighted. For the most part, those which achieve that status do so because of the commercial logo or trademark that figures in the design, rather than the flag itself. The proper designation may very well be the superscripted TM ( ™ ), for trademark, rather than the circled C for copyright ( © ).

Professional sports organizations copyright their logos and the flags that bear them, I suspect, primarily so they can control the profits from sale of flags to fans, and that's a legitimate business undertaking in my view. However, it does raise the question of whether a copyrighted commercial flag -- for a sports team, a college, perhaps, a church flag (to limit "breakaway" groups using the same identifying symbols), and certainly for a business enterprise (the familiar LOB, "location of business" and also "logo on a bedsheet" flag), and maybe even some non-profit "big businesses" like the International Red Cross/Crescent/Lion/etc. -- is in the same "league" as a Volksfahne of the sort that we deal with in national flags and so forth. These are traditionally people's symbols, indeed, often subject to the artistic variation that comes of folk art.

All this seems to point toward a special sort of copyright, which may very well be understood in case law, which allows fair use of a trademark so long as the intent is not to defraud the owner of the trademarked or copyrighted symbol. A similar sort of understanding exists in copyright notices in books, which provide an exemption for book reviewers to quote "short passages" for illustrative purposes in a review of the book. A similar interpretation (or perhaps a legal amendment?) would allow flag sheets, for instance, to include copyrighted flags, newspapers to use them to illustrate articles, and so forth. Again (sigh!), we get into the question of "flag images" vs. "real flags," but let's not go there today.

I suspect that the "fair use" provisions of copyright law, at least in the United States, cover use of copyrighted flags by scholars such as FOTW, and similar uses, already, so there shouldn't be a problem. But we can draw a distinction in FOTW between what one might call "business flags" and "public flags." Then there is also the distinction in some nations between state and national flags, which comes down to a legal restriction on owning or flying certain flag designs, again, to prevent fraud, usually (or, as the old phrase has it, "sailing under false colours"). A great deal of this is codified, however loosely, in understood international law.
Bill Dunning, 4 May 2006

You are essentially right in most of what you are saying, except for one central point which I have the feeling that you are missing. Flags, or any other object subject to copyright, are never actively "copyrighted" according to modern intellectual property law. The copyright protection comes naturally, whether you want it or not, when you create a work of art or literature. This has always been the case in European copyright laws, and is the same in the US copyright law since at least a decade and a half back. Then it is up to you as creator or owner of the said work to release it to common use if you want to. If the work is owned by the state (as is the case with acts of law and e.g. national flags) this is done automatically on a regular basis.

The Australian Aboriginal flag was not a state owned flag from the start. It was created as a private initiative. If the creator did not let go of his rightful copyright to it, then it was still copyrighted.

Also, flags might perhaps be protected in a better way by being registered trademarks, as you are implying. They are in many ways more like trademarks than they are like works of art. If a trademark is registered, the sign used to inform about this is an R in a ring. The superscripted TM ( ™ ) is used for signs that are being used as trademarks but has not (yet) been registered as such, as a mark by the user that he might be willing to enforce his right to the mark by law even without registration but because of it already being established as a sign for him and his business.

Trademark protection could be good for flags, because there are no rules for what a trademark must be to be treated as a trademark, as long as it does not look too much like a previously registered trademark. A work of art or literature, on the other hand, to enjoy copyright protection, must have a level of originality. Thus, the flag of Libya e.g., as it is just green, would probably not be deemed as protected by copyright but could be registered as a trademark.

However, the best would be, if flags and coat of arms had their own sort of intellectual property legal protection. As of today, only one country has such a law, as far as I know, and that's Scotland. National flags however, and flags of certain international bodies like the UN and the Red Cross, are however protected by specific multilateral treaties and specific national acts of law.
Elias Granqvist, 5 May 2006

In the laws of England and Wales, it is not just what might be termed as art or literature - it is any created work, even one which exists solely on the internet, for example, regardless of whether the said work contains the copyright symbol or not. Thus, the work does not have to have any particular artistic merit in the way Elias describes.

He also makes a good point about the use of the superscripted TM for trademarks:

It brought to mind something which landed on my desk the other day from Royal Mail and which now appears in the small print on the back of most of their literature for businesses: "Royal Mail, the Cruciform, the colour red, Freepost..." [my emphasis] there then follows a whole list of further names of services and so on "and Redirection are all trade marks of Royal Mail Group plc."

Intellectual property law and trademark and copyright law in particular as Elias points out, depend upon the resources of the entity which owns it for its effectiveness. (I have lost count of the number of times my work has been stolen since the advent of the internet.) Without such resources, there is no point to it and this would be even more prescient if the "owner" of the registered trademark of a flag did not have such resources. There was an example posted on FOTW a while ago of some university flags posted on the database of (I think) a Government in Asia. In practice, the only entities which would be able to enforce the registration of a flag as a trademark would be governments and corporations of significant size and in my opinion, this would mitigate against the encouragement of the widespread flying of a particular flag amongst the population as a whole, rather than a small interest group within it.
Colin Dobson, 5 May 2006