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.

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]

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.

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}}.

In addition to copyright restrictions, use of national emblems is typically subject to certain other restrictions designed to prevent disparaging or confusing uses and to avoid misrepresentations. According to the Paris Convention, the purpose of article 6ter "is to protect armorial bearings, flags and other State emblems of the States party to the Paris Convention as well as official signs and hallmarks indicating control and warranty adopted by them" and this protection extends "to armorial bearings, flags, [and] other emblems".^[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, until 2020, 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] In Canada, by law "No person shall adopt in connection with a business, as a trademark or otherwise, any mark consisting of, or so nearly resembling as to be likely to be mistaken for, (a) the Royal Arms, Crest or Standard...[or] the arms, crest or flag adopted and used at any time by Canada or by any province or municipal corporation".^[26]

Any such usage restrictions are in addition to restrictions under copyright law however. 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, and to protect the integrity of the emblem or mark.

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.

• United States Army Institute of Heraldry
• WP:Avoid branding

• c:Commons:Coats of arms
• Official U.S. Heraldry has some more information on particular U.S. emblems.