copyright on a flag?

[Mr_Downtown]

I’ve been musing this week about whether a flag could be copyrighted under US law. We tend to say that any pictorial work can be copyrighted, but most flags can be described with a few words (“horizontal stripes of black, red, and gold”) such that they could be constructed by someone who’d never even seen the “original.” Does such a simple work meet the originality requirement described in Feist?

[engineer_comp_geek]

Wikipedia happens to have an entire article on the subject: Wikipedia:Copyright on emblems - Wikipedia

That article says that the standards for originality are fairly low. However, simple geometric shapes like horizontal stripes are not copyrightable.

@wikipedia

The precise requirements a work has to fulfill to be considered sufficiently original to pass the threshold of originality are interpreted differently in different countries. In general, though, the requirements are rather low. For the U.S., the Compendium of U.S. Copyright Office Practices[7] of the U.S. Copyright Office (Compendium (Third)) gives some guidelines:

Common geometric forms such as rectangles, ellipses, five-pointed stars, as well as most works composed solely of uncopyrightable elements are not copyrightable.[8] However, works that include uncopyrightable elements, but are otherwise original, are copyrightable.[8]
Mere choice of colors (or by extension, of shades of colors) does not give rise to copyrightability.[9]
Non-geometric drawings are copyrightable.[10]
Typography and calligraphy are in themselves not copyrightable.[11]

[UDS]

Note, though, that if you are a government seeking to control what you may regard as the misuse of your national flag, you may have mechanisms other than copyright open to you. For instance, if someone is using the flag in way that suggests that they have some kind of official or representative standing on behalf of your country (when in fact they don’t) you can probably control that through some kind of fraud or passing-off action.

[Chronos]

Of course, if you’re a government, you can just make laws concerning the use of your flag directly, without recourse to copyright.

And while a simple tricolor is probably not original enough to be copyrighted, something like the American flag is considerably more complicated, and just might be. There are some quotations which have had copyright defended on them which are shorter than a full description of the American flag.

[lance_strongarm]

@Chronos

Of course, if you’re a government, you can just make laws concerning the use of your flag directly, without recourse to copyright.

Yes, and under U.S. law, government intellectual property generally cannot be copyrighted - it belongs to the public. So I would guess the U.S. flag, at least, isn’t copyrightable.

If someone made up their own flag, just as art, it might be copyrightable if it is unique enough (and not just like an actual flag).

[Francis_Vaughan]

The Australian Aboriginal Flag is copyrighted.

This engendered some interesting disputes.

Once would assume the appropriate treaties would mean the flag was also copyright under US law.

[watchwolf49]

@Chronos

Of course, if you’re a government, you can just make laws concerning the use of your flag directly, without recourse to copyright.

And while a simple tricolor is probably not original enough to be copyrighted, something like the American flag is considerably more complicated, and just might be. There are some quotations which have had copyright defended on them which are shorter than a full description of the American flag.

4 U.S. Code § 8 - Respect for flag

[Mr_Downtown]

Thanks, engineer_comp_geek. I hadn’t found the right search terms to stumble onto that Wikipedia entry. It points to what appears to be Copyright Office Practices that describe the minimal standard for creativity:

503.02(a) Minimal standards: pictorial or graphic material. A certain minimal amount of original creative authorship is essential for registration in Class VA or in any other class. Copyrightability depends upon the presence of creative expression in a work, and not upon aesthetic merit, commercial appeal, or symbolic value. Thus, registration cannot be based upon the simplicity of standard ornamentation such as chevron stripes, the attractiveness of a conventional fleur-de-lys design, or the religious significance of a plain, ordinary cross. Similarly, it is not possible to copyright common geometric r. figures or shapes such as the hexagon or the ellipse, a standard symbol such as an arrow or a five-pointed star. Likewise, mere coloration cannot support a copyright even though it may enhance the aesthetic appeal or commercial value of a work. For example, it is not possible to copyright a new version of a textile design merely because the colors of red and blue appearing in the design have been replaced by green and yellow, respectively. The same is true of a simple combination of a few standard symbols such as a circle, a star, and a triangle, with minor linear or spatial variations.

While these wouldn’t answer the theoretical question, they do shed some light on what could be registered as a practical matter.

[orcenio]

I present to you exhibit a: Pocatello, Idaho.