Subscribe to get latest news delivered straight to your inbox

    Would Anyone Copyright This Flag? (Not an April Fool’s Joke)

    • 01.04.2024
    • By hughstephensblog
    Hugh Stephens Blog

    No, this flag is not an April Fool’s joke, although I am posting this on April 1. As a flag design, it’s a dog’s breakfast. Not that a registered design has to be aesthetically appealing, but it needs to be original. And this one is original, in its own way. The flag of the Town of Ladysmith, BC, as Ladysmith councillor Jeff Virtanen has stated, is a “hodgepodge”. The mayor also agrees that it should be updated. Where it actually came from, no-one is saying but it is a pastiche of the red bars of the Canadian flag, with a maple leaf in the lower right, dogwood symbol (the provincial flower of British Columbia) in the upper left, and then, in the middle, a design of what appears to be a sail boat (Ladysmith does have a harbour) with two horseshoes superimposed on the sail (not sure what they are supposed to represent), with a diagonal slash that says “49th parallel”.

    That is a reference to Ladysmith’s location, smack on the 49th parallel, the dividing line between Canada and the United States for most of North America west of Lake of the Woods. However, owing to a quirk of both history and geography, when the boundary west of the Rockies between the United States and British possessions in North America was settled by the Oregon Treaty of 1846, all of Vancouver Island, which extends south as far as Victoria at latitude 48’ 25” N, was included within British territory. Somehow, the fact that you can drive through the 49th parallel without being accosted by the US Border Patrol or the Canada Border Services Agency is part of Ladysmith’s appeal. Actually, it is a nice little town of 9,000 originally established as a coal mining centre back at the beginning of the 20th century, with a great location, some nice heritage buildings—and a very eclectic flag.

    Last year I wrote about flags and copyright (“Flagging Copyright Concerns: Vexillologists Take Note”), given the controversy over the Australian Aboriginal flag, when the Australian government had to fork over AUD$20 million to purchase the copyright to a flag design that it had adopted, as the Aboriginal flag, under the Flags Act. Aboriginal artist Harold Thomas had designed the flag back in the 1970s and an Australian court had upheld his copyright on the design. I doubt if there is going to be any dispute over ownership to the Ladysmith flag, although you will note that the flag image gracing this blog at the top of this page is used with permission of the website Flags of the World, which has a depiction of the Ladysmith flag along with 188,000 other flags. It is very detailed. If you want to know what the flag of Tannu Tuva between 1933 and 1941 looked like, this is the place to find out.

    Generally, most country flags are not copyright protected either because the designs have lost protection owing to the lapse of time or because governments have made them copyright exempt. However, there may be other forms of intellectual property protection to ensure the national flag is not misused in such a way as to misrepresent a commercial entity as a government institution, or to prevent it from being disfigured or dishonoured.

    Flags of the World has an extensive section on copyright, noting that,  “Our editorial policy is to include images only when we can ascertain that we have permission to use them”. The website gives permission to use any of the flags on the site under the following conditions;

    • you limit your use to a maximum of 5% of the images or content of the website (let’s see, 5% of 188,000 is 9,400 so I am OK there)
    • you quote the author (Check, did that)
    • you quote the website (Check, yup)
    • you do not alter in any way the images or the content of the text (Check)
    • you use the material for non-commercial and non-political purposes only (And Check)

    It looks like I am in the clear when it comes to using this particular flag image. However, just to be extra vigilant I asked for and was granted permission to use the flag design on the website which was designed by Masao Okazaki from a photo located by Dave Fowler. It is not clear who the original designer of the Ladysmith flag is or was.

    Now, whether and when Ladysmith’s municipal flag will get a makeover is a good question. It may not be top of mind for residents who are dealing with other issues, like inflation, world peace or whatever. Still, a flag is a branding tool, and this brand needs updating.

    But here are some copyright considerations that Ladysmith Town Council might want to consider.

    When the new design is approved by Council, no doubt after an extensive public consultation process, the flag designer (or their estate) will hold the copyright for the work for the duration of their lifetime, plus 70 years. That is unless they are an employee of the town and were assigned the task of flag design as part of their duties, in which case ownership would vest in the township (unless there is an agreement between the employee and employer to the contrary) although the copyright term of protection will still last for the life of the author plus 70 years. In Canada, there can be a distinction between authorship and ownership. If the artist is not an employee but if the work is produced under a “contract of service or apprenticeship”, (as opposed to a simple “contract for services”), the township will also own the copyright. But if the work is done under a “contract for services”, i.e. as an “independent contractor”, the author of the work will control the copyright. What is the difference between the two types of contracts? That is why we have lawyers!

    If you want to add another layer of complexity, even if the copyright is owned by the township, the author will still enjoy moral rights in the work, that is the ability to protect the integrity of the work, unless there is an agreement to the contrary. So, if we take the current flag as an example, and Council decides to remove the two horseshoes from the sailboat’s flag, in theory the creator of the original design (if anyone is aware of who that is) could assert their moral rights to oppose the modification of the flag. Better to get a new one designed and, if possible, control the copyright through contractual provisions.

    Replacing a poorly designed flag may be a good idea, but keep in mind the copyright ramifications. I am sure that the Town has a legal department, or at least a lawyer on retainer for legal advice, so they will no doubt do it right. I can hardly wait to see the new flag floating proudly over Ladysmith harbour.

    This article was first published on Hugh Stephens Blog