Flagging Copyright Concerns: Vexillologists Take Note

Credit: Author

People who are really into flags are known as vexillologists, a rather specialized field that studies the history, symbolism and usage of flags. If the papers offered at the periodic International Congress of Vexillology are any guide, then many things attract the attention of flag scholars, such as “The Flags of Bulgarian Municipalities”, “The Flags of Genghis Khan”, or “The History of the Flag of Gambia”, but copyright does not seem to be one of them. Yet copyright has a vexillological angle, one that just cost the Australian government over $20 million dollars. This was the sum paid to Aboriginal artist Harold Thomas to acquire the copyright to Mr. Thomas’ design for what has become known as the “Aboriginal Flag”.

Thomas designed the flag in 1970 and the black, red and gold flag was widely adopted by Aboriginal groups. In 1995 it was given “national flag” status by the Australian government, but Australia did not “own” the flag, at least not until now. Two years later, in 1997, an Australian court affirmed that Thomas was the copyright holder for the flag design. Thomas did not claim the copyright on the flag until after the Australian government had made it official under the Flags Act, and he was challenged by two other purported creators. However, the judgement was in his favour, and ever since there has been uncertainty over who can use it, and in what form. In 1998, after winning the judgement, Thomas granted a licence to a company called Flags 2000, giving that company the right to reproduce and manufacture the flag, and in November 2018 he licensed the design to a non-indigenous company, WAM Clothing.

That licence gave WAM the exclusive right to reproduce the flag design on clothing, and in physical and digital media. It had been traditional for major Australian rules and rugby league teams in Australia to feature the flag on football uniforms during events honoring Aboriginal athletes, but WAM issued cease and desist orders unless they received royalties, arousing considerable controversy. Non-profits who were selling tee-shirts with the flag on it were also sent letters demanding payment. WAM was made out to be the bad guys, but they were protecting the rights they had paid for. However, it didn’t help that WAM’s part-owner, a non-Aboriginal, had been fined $2.3 million for selling fake Aboriginal art through a previous company.

The fundamental problem was that it is highly unusual to have a flag that is regarded as a national symbol be subject to private copyright. A compulsory licence was proposed, and hearings were held. However, the Australian Senate concluded that government action to, in effect, confiscate Thomas’ copyright would result in perpetuating oppression and injustice against Aboriginal peoples.  The solution was to negotiate with Thomas to acquire the rights, including extinguishing rights sold to licensees such as WAM. Thomas will retain the moral rights.

As reported in Lexology, “As part of the deal, Flagworld will keep its exclusive licence to be able to manufacture Aboriginal flags for commercial use, however the government has confirmed that Flagworld would not stop people from making their own flags for personal use…The Government has confirmed that all future royalties the Commonwealth receives from Flagworld’s sale of the flag will be put towards the ongoing work of NAIDOC.” (National Aborigines and Islanders Day Observance Committee).

In addition to buying out the rights to the flag, the Australian government agreed to establish an annual $100,000 scholarship named for Thomas to help Indigenous students develop skills in leadership, and to create an online history and education portal for the flag. So, it seems, that problem has been solved for the people of Australia, and Harold Thomas will be a happy man. But Thomas’ flag is not the only Indigenous flag widely flown.

In North America the “Mohawk Warrior” flag has flown since the mid-1970s at various Indigenous-related events. The flag, designed by Indigenous artist Karoniaktajeh Louis Hall, was first hoisted when a group of Mohawks occupied land in the Adirondacks in New York State. It became widely known as a native symbol during the so-called “Oka Crisis”, a standoff between the Mohawk community of Kanesatake and Canadian police and troops in July of 1990. Since then it has been flown at many protest meetings and occupations involving different native groups (not just Mohawks), as well as at cultural gatherings and activities. If you want one of these flags they are available from Amazon, Flagmart, Etsy and so on. Or you can get the design on hoodies, tee-shirts or facemasks. The big difference between the Mohawk Warrior flag and Harold Thomas’ aboriginal design in Australia is that unlike the “official” aboriginal flag, the unofficial Mohawk flag is available for anyone to use through a Creative Commons “Attribution-Share Alike 3.0 Unported license.” That means any user is free to share, i.e. copy and redistribute the material in any medium or format and to adapt by remixing, transforming or building upon the material for any purpose, even commercially.”

When it comes to the use of official flags, copyright generally does not apply because of the age of the flag designs, putting them in the public domain. In the US, federal government works, including Old Glory, cannot be copyrighted. However, the flag may be protected by other means. For example, flags can be protected under Article 6ter of the Paris Convention for the Protection of Industrial Property of 1883 (1967 Stockholm Act). The purpose of this article is to prohibit the registration and use of trademarks that are identical or similar to notified official emblems. In Canada, the Canadian flag is also protected through trademark registration, prohibiting commercial use without permission.

In British Columbia, where I reside, there is a provincial flag adopted in 1960. According to the BC government’s website, the flag is protected by Crown copyright (although since Crown copyright in Canada only lasts for 50 years from the date of creation, it would seem that the copyright on the flag must have expired in 2010). The BC government makes digital artwork files available for download, but the user must not alter the aspect ratio of the flag, use part of the flag, or adjust the image in any way. And just in case you weren’t thinking, “The provincial flag should never be used as a tablecloth, carpet or seat cover, but instead be hung in a place of honour.” What about as a window covering, which I have seen many times in lieu of curtains? Maybe that is a “place of honour”?

And then there is the Vancouver Island flag, featured with some others in the image at the top of this blog post. I took the photo at a local marina. (It is the blue ensign, second from the right). This flag is a historical curiosity and depending on whether it is considered an official pennant or not, it could be long out of copyright protection or potentially still covered. In 1865, the British Admiralty authorized British colonies with naval assets to commission their own flags by superimposing (defacing, in vexillological terms) the seal of the colony on the fly leaf of the blue ensign. This was the pattern used for British colonial flags in many territories in Africa, the West Indies and the South Pacific and is still used for the state flags of the various Australian states. While in theory such a flag could have been produced for the Crown Colony of Vancouver Island, which was established in 1849, in August of 1866 Vancouver Island was merged with the Colony of British Columbia. A few years later, in 1871, the combined colony entered Canada as its sixth province. If such a flag had been produced for Vancouver Island in 1865-66, its Crown copyright would have long since expired. However, the flag flown today was conjured up by a local vexillologist, Michael Halleran, in 1988, based on the 19th century British Admiralty regulations. Halleran had it produced in a local flag shop, and it has become increasingly popular, as a novelty. While Halleran says he does not claim copyright in the flag, that does not necessarily mean the flag is in the public domain.

Flags have been used to make political statements throughout history, and the present is no exception. The “truckers’ convoy”, (I could call it a “freedom convoy” but that would be a misnomer, unless you define “freedom” to mean that I can do whatever I want whenever I want without any regard for the impact of my actions on others), which for three weeks from late January to mid-February occupied the streets of Ottawa right in front of the Parliament Buildings, adopted several flags to get its point across. Apart from Canadian flags festooned from every 18-wheeler and pick up truck (to demonstrate their “patriotism”, you see), this rag-tag bunch managed to round up Confederate flags, US Gadsden libertarian “Don’t Tread on Me” flags (with a Canadian variation, converting the snake into a Canada goose), a Nazi flag and even a revived version of the “patriote” flag from the 1837 rebellion in Lower Canada. All these flags carry hidden or not so hidden messages. It just goes to show that when a cause is flagging, flag your intentions with a new banner. (pardon the pun). Create a new flag (or revive an old one) for the vexillologists to discuss at their next international convention. If its original, your flag just might enjoy copyright protection. Unless of course it is the “Jolly Roger”. Imagine pirating a pirate flag!

© Hugh Stephens 2022, All Rights Reserved.

Author: hughstephensblog

I am a former Canadian foreign service officer and a retired executive with Time Warner. In both capacities I worked for many years in Asia. I have been writing this copyright blog since 2016, and recently published a book "In Defence of Copyright" to raise awareness of the importance of good copyright protection in Canada and globally. It is written from and for the layman's perspective (not a legal text or scholarly work), illustrated with some of the unusual copyright stories drawn from the blog. Available on Amazon and local book stores.

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