Blast from the past: Rainbow flag and the hues of IP

40 years ago, on 25th of June, the rainbow flag was hoisted for the first time in San Francisco. This flag which the world has come to associate with LGBTQ+ rights had humble beginnings and didn’t look exactly like we have come to know it today.

The rainbow flag was designed by Gilbert Baker, an openly gay man and a LGBTQ+ activist. At the urging of his friend Harvey Milk, a known figure in the LGBTQ+ movement, and others, Baker set out to create a symbol of pride and hoped to unite the gay community. He was granted $1000 to design and produce it.

Baker designed a flag bearing 8 colours – hot pink, red, orange, yellow, green, turquoise, indigo and violet, each bearing a meaning. Baker then, with the help of 30 volunteers, dyed the cloth in 8 colours; 4 hands sewed the fabric and 20 hands ironed it. On June 25, 1978, the rainbow flag was hoisted at the United Nations Plaza in San Francisco at the Gay Freedom Parade. Little did Baker know that his design would go on to become a cultural phenomenon in the decades to follow.

The first soar in demand for the flag came just after the assassination of Harvey Milk. Paramount Flag Company started mass producing the rainbow flag to meet the demand but the hot pink fabric wasn’t readily available. Hence, they had to drop this colour from the flag making it a flag of 7 colours. In 1979, the Gay Freedom Day Committee decided to hang the flag vertically from all lamp posts for the 1979 Gay Freedom Day Parade. But, the center stripe was obscured by the lamp post, so they had to eliminate another colour, turquoise to solve the problem with even number of stripes. The colour indigo was changed to royal blue and the flag with 6 stripes, as we know it today was adopted.

                                                                                                                        Source: Wikipedia

An advocacy organization, in the year 1978, attempted to trademark the rainbow flag. Baker, with the help of a lawyer named Matthew Coles thwarted the attempt and ensured that the flag remains free for the use of the public. Assuming that Baker wanted to register the flag under intellectual property laws, would he have succeeded?

Can flags be protected as Intellectual Property?

Flags could fall under the protection regime of trademarks, copyrights and designs.

As a trademark

In India, like in many common-law countries, trademark rights may be granted protection when a ‘mark’ is associated with ‘goods or service’. A mark, as defined in Section 2(m) of the Trade Marks Act, 1999 (‘the Act’) includes ‘combination of colours’. Therefore, the rainbow flag with its 6 distinct colours in a fixed pattern qualifies as a ‘mark’.

The mark should then be applied to goods or service. Based on the intent of creation and use of the rainbow flag, it would broadly fall under the following classes under Nice Classification –

Class 24 – Flags of textile or plastic

Class 41 – Organisation and conducting of cultural events; entertainment

Other ancillary relevant Classes, for the purpose of selling souvenirs, are –

Class 16 – Stationery

Class 25 – Clothing

Whether the mark would be registrable would depend on the inherent distinguishability of the 8 stripes (holds true to 6 stripes as well) and the presence of any other mark with similar colour combinations. The former may have been easier to prove, therefore, there may not have been any objections under Section 9 of the Act. Objections under Section 11 may have been raised by the Registry citing other combination of colours marks. In USA, the country of origin of the flag, there existed various popular rainbow coloured logos owned by NBC, Skittles, etc. 

Today the rainbow flag is synonymous with the LGBTQ+ community and is known worldwide. This fact would have guaranteed protection to the flag even in countries where it may not have been registered based on its cross-border reputation.

As a copyright

To obtain copyright protection there are 3 essential requirements – fixation, originality and minimal creativity. Baker fulfilled the first requirement by fixing the rainbow colours on a piece of fabric. The flag may be presumed to be original since there was no record of any flag containing the 8 unique colours before 1978. Lastly, Baker arranged specific colours on the flag, each bearing a meaning and the flag as a whole was well-thought of and symbolic. Therefore, it fulfills the originality requirement.

Copyright is an automatic right granting the creator economic and moral rights in the work. As soon as the 8 coloured flag was sewn together, all rights automatically vested in Baker. Registration was/is not required to enforce his copyright in all countries that were/are Berne Convention signatories (currently, there are 176-member countries).

However, if it should be registered, it should be as an artistic work. For its use as a flag, it can be considered as a pure artistic work like a Mona Lisa or the Starry Night and get protection under the copyright regime. Any commercial use such as on merchandise would make copyright protection a bad option because of Section 15(2). Section 15(2) of the Copyright Act, 1956 states that any work that can be protected as a design, when applied to goods more than 50 times, will lose copyright protection.

As a design

Design protection is granted to the aesthetics of an industrial product. The requisites for registration are novelty, application to an article through an industrial process and aesthetic appeal (it should be judged solely by the eye). In India, Section 2 of the Designs Act, 2000, inter alia states, that a design can be colours, or its combination. The colours of the rainbow flag, as discussed earlier, can be presumed to be novel, added an aesthetic appeal to merchandise (article) and hence, may be protected under the Design regime.

Schedule III of the Design Rules, 2001 classifies the products which are to be granted design protection in India. The rainbow flag may be granted exclusive protection under the following Classes –

Class 02 – Articles of clothing

Class 19 – Stationery (for merchandise).

However, if the application was made now for merchandise bearing rainbow colours, it would be rejected as the flag, which has been in existence since 1978 and is hugely popular, has lost its novelty.

Ownership of the flag

It seems like an easy answer – Gilbert Baker owns the IP in the flags. However, there could be more than meets the eye. It is a fact that the Gay Freedom Day Committee gave money to Baker to produce the flag. This can be interpreted as a work-for-hire situation where the Committee may be the owner of the IP while Baker is the author (of the copyright). 

In reality, there have been no claims made by the Committee, leaving the ownership of the flag’s IP with Baker. Further, Baker has not enforced his IP as he believes the flag belongs to everybody. For this reason, he has not laid down any rules for the usage of the flag thereby allowing individuals and companies to use the rainbow colours for commercial and non-commercial purposes.  During several incidents of vandalism of the flag, Baker did not show any interest in prosecuting the perpetrators. This goes to show that he has waived his rights to the flag.

Use and significance of the flag

The rainbow flag is now one of the most important symbols of LGBTQ+ movement. It is used in varying forms – as regular flags, merchandise, marketing strategies by supporting companies, etc. 

In 2015, Museum of Modern Arts added Baker’s flag to its permanent design collection which houses other famous symbols such as ‘@’ symbol, Creative Commons logo and the recycle symbol. The Museum reasoned that the flag is accessible around the world, and Baker’s generosity to let everyone benefit from it made it a design success and a historical and cultural object of influence.

The flag today is beyond a logo or an IP – it is a symbol that unifies an entire community worldwide and their movement. The flag, which is rightly and widely called as the ‘Pride flag’ is a symbol of hope, resistance
and resilience which has lived on even after its creator (Gilbert Baker passed away in 2017). For many, embracing the rainbow has been a process of reconciliation and healing. All this was made possible on this day, 40 years ago, with the unveiling of this simplistic looking rainbow flag.

DISCLAIMER: The information provided in this article is for educational purposes only. The same cannot be construed as legal advice.