Wikipedia:Copyright on emblems

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This page discusses the status of flags, coats of arms, seals, and similar official symbols, as well as drawings of such emblems, under United States copyright law. Other nations' laws may differ; however, for the English Wikipedia, only United States law is generally considered, since that's where the Foundation and its servers are based.

How are emblems defined?[edit]

Emblems have historically been defined by a textual description called a blazon in heraldry or vexillology. Blazons use a more or less standardized vocabulary and grammar to describe the design of an emblem. The blazon for the Scottish saltire for instance is Azure, a saltire Argent, which means a white or silver diagonal cross on a blue background. The blazon for the flag of Kent is Gules, a horse forcene Argent, meaning a white or silver rearing horse on a red background.[1] The vocabulary of blazons defines backgrounds, colors, patterns, and many other items that traditionally may appear on an emblem such as animals (including their postures) or plants.[2]

Blazons leave considerable leeway in creating an actual visual rendering of it, called an emblazon in heraldry. Colors are not defined precisely: azure specifies just "blue", but does not define the precise shade of blue to be used. Shapes are also loosely defined: how exactly a horse is drawn on the emblem is left unspecified, only its general posture and the fact that it must be a horse are defined. Identical blazons have been rendered quite differently throughout history, e.g. with animals shown in a more "classical" or a more "modern" style.[3]

In modern times, emblems are sometimes defined more precisely using geometric specifications and color specifications using e.g. RAL or Pantone colors. An example of a geometrical flag specification is the Flag of Switzerland at sea; the colors, however, are defined only loosely as "a white cross in a red field" in article 3 of the Swiss Federal Act on Maritime Navigation.[4] The EU flag is completely defined by a blazon, a geometric specification, and Pantone and RGB color specifications, and even reference images.[5]

Copyright on renderings of emblems[edit]

Only creative works can be copyrighted. A work must be sufficiently original to be eligible to copyright; mere reproductions are not copyrightable (see Bridgeman v. Corel for the U.S.), and the effort required to produce a reproduction has been rejected explicitly as a base for copyrightability of a work in the U.S. by Feist v. Rural. This excludes both mechanical reproductions such as photocopies and also reproductions made by a human from copyright. Only works passing the threshold of originality are eligible to copyright. Inherent in the legal definition of originality is that the work be a human creation.[6]

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]

Applied to emblems, this means that:

  • An emblazon drawn to faithfully depict a geometric specification of an emblem (a description) is not copyrightable. This applies even if the colors used in the emblem are imprecisely or not at all defined, and even if the emblem contains writing. For example, a faithful reproduction of the EU flag is not copyrightable in itself. Likewise, a representation of the Swiss flag at sea is not copyrightable, even if the choice of the precise shade of red is left to the author of the emblazon.
  • Any drawing containing only geometric shapes or standard patterns is not copyrightable. For example, a representation of the Flag of Scotland is not copyrightable. Again, the precise coloring is immaterial and does not give rise to copyright.
  • An emblazon drawn to represent a description containing non-geometric shapes is copyrightable. An example would be the flag of the county Kent; the precise drawing of the horse is original enough to warrant copyrightability.[3] Again, coloring is immaterial, for example taking the emblazon shown at Flags of the World and changing the color to a slightly different shade of red (or to some other color) does not make the new image copyrightable in itself; it remains a derivative work and as such is subject to the copyright of the original.
  • An emblazon drawn to imitate another emblazon containing non-geometric shapes is not copyrightable separately from the original work. If the goal of the author is to replicate a single preexisting work as precisely as possible, the result has no copyright beyond that of the original work, and is thus a derivative of the original.

A blazon does not define a coat of arms in the very last detail. The shape of the shield, for instance, is left completely undefined. Non-geometric elements are only broadly described ("a rearing horse, facing left", but how exactly that horse is drawn is left undefined). Coats of arms including non-geometric elements leave the author of an emblazon considerable freedom to express his creativity to produce an original work. Examples of such non-geometric elements include animals and plants, but also crowns, banners, pinnacles, and so on. An emblazon of a coat of arms that contains such non-geometric elements is thus always copyrightable in itself as an original work. By extension, any drawing of a flag that shows a coat of arms is basically copyrightable.

Drawings of emblems that are designed to be representative and faithful reproductions of some reference image are themselves not copyrightable precisely because they are mere reproductions. If the reference image is copyrighted, such reproductive drawings may even be a copyright violation! If the underlying reference image itself is in the public domain, then so is the reproductive drawing.

Copyright on emblem definitions[edit]

A blazon itself is not copyrightable as it contains only the bare facts about a flag and at best only hints at a procedure for producing an emblem. In the U.S., such items are non-copyrightable under 17 USC 102(b);[12][13] internationally, this is regulated by article 2 of the WIPO Copyright Treaty.[14]

Likewise, technical drawings specifying the geometry of an emblem are in general only copyrightable if they themselves contain original elements. (If a technical drawing only describes an original design, but is otherwise a standard technical drawing, the technical drawing is not copyrightable, although the design described may be.)[15] Reference images may be copyrighted if they show sufficient originality, as discussed above.

National emblems typically are defined in official governmental publications. The Stars and Stripes, for instance, is defined in 4 USC 1[16] and Executive Order 10798.[17] The emblem definition is thus in the public domain as a work of the federal government of the U.S. The same applies to many other national emblems such as the aforementioned Swiss flag at sea, which is defined geometrically in Swiss law number 747.30.[4]

Another interesting example is the Flag of Germany. The standard flag itself is not very peculiar, it's three horizontal stripes of equal widths in the colors black, red, and gold (or yellow). As a purely geometric design it's in the public domain no matter what. However, the service flag of Germany, the Bundesdienstflagge, superimposes on that basic design a coat of arms showing the Bundesadler, the federal eagle. Are drawings of the German service flag eligible to copyright? As a matter of fact, the answer is "no". Both the regular flag and the service flag of Germany are defined and have been published in 1950 in the Anordnung über die deutschen Flaggen ("Edict on the German flags"), which was revised in 1996.[18] This edict even includes reference images of the flags, which are thus in the public domain, both under U.S. copyright law and also by the corresponding provision in article 5(1) of the German Urheberrechtsgesetz.[19] Any faithful drawing of the German service flag, even if it uses other color shades, is thus also in the public domain, not being eligible itself to copyright as a mere reproduction. Creative drawings of the service flag, obtained for instance by a different rendering of the coat of arms, might be copyrightable; however, such a drawing would not show the German service flag anymore.

If an emblem is specified only by a blazon or similar imprecise description in a governmental publication, a particular emblazon of it may still be copyrightable. To avoid this, some countries explicitly exempt their national emblems from copyright. This can be seen for instance in the copyright laws of many eastern European countries, e.g. in the successor countries of the USSR.[20]

Emblems of sub-national entities (states of a union, cantons, districts, counties, townships, etc.) may or may not be defined in an official law, code, or regulation. If they are, they are considered to be in the public domain as statutes, laws, and similar official publications are in general not copyrighted. The U.S. Copyright Office applies this even to edicts of sub-national governments or foreign governments.[21] Emblems of official bodies or sub-national entities not defined in such official publications may be copyrighted. In Germany, for instance, they do not fall under the provisions in article 5(2) of the German Urheberrechtsgesetz for "other governmental publications".[22] For Germany, note however that e.g. official coats of arms of public law institutions such as states and municipalities must be approved and are published in an Amtsblatt (an official publication), and thereby become free of copyright under § 5(1). This forms the legal base for the template {{PD-Coa-Germany}}.

Usage restrictions on national emblems[edit]

The use of national emblems is typically subject to certain restrictions outside the scope of copyright law designed to prevent disparaging or confusing uses and to avoid misrepresentations. Following article 6ter of the Paris Convention for the Protection of Industrial Property on patents, trademarks, and such, national emblems cannot be used as (part of) a registered trademark.[23] Using a national emblem in a context where the display of the emblem might be construed to falsely imply an official endorsement is also generally forbidden. In the U.S., for instance, official seals typically are only to be used by official agencies,[24] and the use of many emblems is restricted in the criminal code (18 USC 33).[25] (Curiously, the U.S. Code not only restricts the use of U.S. emblems, but also explicitly the use of the Red Cross flag and of the Flag of Switzerland (18 USC 706;708).) In Germany, the Bundesdienstflagge may not be flown by private persons but only by the holders of the official positions defined in the law.[18]

Any such usage restrictions are beyond copyright law, though. They are designed to prevent fraudulent abuses of emblems, in particular to prevent using them to imply an affiliation with or an endorsement by an official body when there is no such affiliation or endorsement. Merely showing such emblems (for instance, in a Wikipedia article) is, in our understanding, not subject to such emblem or insignia laws.

How to tag images of emblems[edit]

There is the tag {{insignia}}, which can be placed in addition to a license tag on the image description page of images showing emblems. It informs the reader that there may be some usage restrictions on the image, even if the image is freely licensed and thus free as far as copyrights are concerned. This tag also exists at the Commons.

References[edit]

  1. ^ Civic Heraldry UK: Kent County Council Coat of Arms. URL last accessed June 21, 2006.
  2. ^ Gold, S.; Shead, T.: A Heraldic Primer. URL last accessed June 21, 2006.
  3. ^ a b Compare e.g. the different styles of the horse in some versions of the flag of Kent: [1], [2], [3], [4]. They all comply with the blazon Gules, a horse forcene Argent, yet are all very different. URLs last accessed June 21, 2006.
  4. ^ a b SR no. 747.30: Bundesgesetz über die Seeschiffahrt unter der Schweizer Flagge (Seeschiffahrtsgesetz) (Swiss Federal Act on Maritime Navigation); URL last accessed June 21, 2006.
  5. ^ Graphical specifications for the European flag. URL last accessed June 21, 2006.
  6. ^ U.S. Copyright Office: Compendium of Office Practices II, section 503.03(a). URL last accessed June 26, 2006.
  7. ^ Compendium of U.S. Copyright Office Practices, Third Edition (official version, December 22, 2014)
  8. ^ a b Compendium (Third), § 906.1. "The Copyright Act does not protect common geometric shapes, either in two-dimensional or three-dimensional form. There are numerous common geometric shapes, including, without limitation, straight or curved lines, circles, ovals, spheres, triangles, cones, squares, squares, cubes, rectangles, diamonds, trapezoids, parallelograms, pentagons, hexagons, heptagons, octagons, and decagons. Generally, the U.S. Copyright Office will not register a work that merely consists of common geometric shapes unless the author’s use of those shapes results in a work that, as a whole, is sufficiently creative."
  9. ^ Compendium (Third), § 906.3. "Mere coloration or mere variations in coloring alone are not eligible for copyright protection."
  10. ^ Compendium (Third), § 905. "In the case of two-dimensional works, original authorship may be expressed in a variety of ways, such as the linear contours of a drawing, the design and brush strokes of a painting, the diverse fragments forming a collage, the pieces of colored stone arranged in a mosaic portrait, among other forms of pictorial or graphic expression."
  11. ^ Compendium (Third), § 906.3. "The copyright law does not protect typeface or mere variations of typographic ornamentation or lettering."
  12. ^ U.S. Code: 17 USC 102(b). URL last accessed June 21, 2006.
  13. ^ U.S. Copyright Office: Compendium of Office Practices II, section 510.03. URL last accessed June 26, 2006.
  14. ^ WIPO Copyright Treaty, article 2: Scope of Copyright Protection: "Copyright protection extends to expressions and not to ideas, procedures, methods of operation or mathematical concepts as such." URL last accessed June 21, 2006.
  15. ^ U.S. Copyright Office: Compendium of Office Practices II, section 510.01. URL last accessed June 26, 2006.
  16. ^ U.S. Code: 4 USC 1: The flag and seal, seat of government and the states; chapter 1: The flag. URL last accessed June 26, 2006.
  17. ^ U.S. Government: Executive Order 10798: Proportions and Sizes of Flags and Position of Stars. URL last accessed June 26, 2006.
  18. ^ a b Anordnung über die deutschen Flaggen from June 7, 1950, including a graphical reference (BGB 1950, p. 205). Revised in 1996, again in text form and with reference graphics (BGB 1996 I, pp. 1729–1732). URLs last accessed June 26, 2006.
  19. ^ German Urheberrechtsgesetz, § 5(1) exempts laws, edicts, and similar official publications from copyright. URL last accessed June 26, 2006.
  20. ^ See e.g. the copyright law of Russia (2004), article 8; or the copyright law of Lithuania (2003), article 5. URLs last accessed June 26, 2006.
  21. ^ U.S. Copyright Office: Compendium of Office Practices II, section 206.01. URL last accessed June 26, 2006.
  22. ^ Dreier/Schulze: Urheberrechtsgesetz; Beck Verlag, Munich 2003; p. 132. ISBN 3-406-51260-7. The leading commentary on the UrhG. In German.
  23. ^ Paris Convention for the Protection of Industrial Property, article 6ter. URL last accessed June 26, 2006.
  24. ^ As an example, consider the logo of the USFWS and its usage restrictions. URL last accessed June 26, 2006.
  25. ^ U.S. Code: 18 USC 33: Emblems, Insignia, and Names. URL last accessed June 26, 2006.

See also[edit]

External links[edit]