Intellectual Property Insights from Fishman Stewart
Mini Article – Volume 22, Issue 11

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The Colorful Origins of the Pride Flag

By Kristyn C. Webb

June is Pride Month, and as the celebrations commence, it may come as a surprise to learn that one of the most iconic symbols of LGBTQ+ rights and awareness — the rainbow flag — is not registered for any intellectual property protection. There are no federal trademark or copyright registrations for the design. Instead, intellectual property rights have been used to keep the rainbow flag design free of any restrictions that might hamper the public’s free use of the design.
Despite this lack of intellectual property ownership, the flag does have an identifiable author: Gilbert Baker. Baker designed the original rainbow flag in 1978. The flag was created as a positive symbol of LGBTQ+ identity and solidarity that could serve as an alternative to the more common Pink Triangle symbol, which was a recaptured symbol of oppression. The flag made its debut at Freedom Day in San Francisco that same year. Shortly thereafter, an advocacy organization attempted to lay claim to the flag’s design as a trademark.
In response, Baker hired civil rights attorney Matt Coles to help him block the advocacy organization from filing a federal trademark application or otherwise controlling the public’s free use of the design. Baker could not afford to pay Coles, but Coles took on the case because he understood the importance of keeping the flag as a shared community symbol. Baker and Coles were successful at keeping the organization at bay with just a few demand letters. To this day, the rainbow flag design remains free for all to use.
Intellectual property rights are often used to restrict others from using the protected property. In this case, however, intellectual property rights achieved the opposite outcome. Baker’s choice to not enforce his rights, and Coles’ intervention to assist Baker in doing so, ensured that the public could use, adapt, reproduce, and display the design without fear of infringement liability. Similar outcomes to important community iconographies can also be seen in the use of the “Black Lives Matter” phrase, as was discussed in a previous Fish Bits article.

Published June 3, 2022

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