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Baker reportedly told Matt Coles, the attorney who represented him, that he had “created the flag for everyoneĪnd wanted it to remain free for public use”. 1īaker did, however, consult an attorney to block an early attempt by an LGBTQ+ advocacy organisation to register a US trade mark for the rainbow flag. That said, Baker purposefully never enforced his copyright in the flag, as “he wanted it to be owned by everyone”, according to Charley Beal, Baker’s friend and Manager of Creative Projects at the Gilbert Baker Foundation. The rainbow flag is not protected under such an agreement, but it does qualify for copyright protection as an original artistic work. This is also true from an intellectual property perspective, and there are barriers to protecting a symbol such as a flag if it consists of or contains an emblem that has protection under an international agreement. He added: “It is not just a logo – it functions in so many different ways”. In 2015, Baker told New York’s Museum of Modern Art (to which he gifted the prototype rainbow flag for its design collection) that he had hit upon the flag as a symbol because “flags are about proclaiming power”. We all felt that we needed something that was positive, that celebrated our love.” But it represented a dark chapter in the history of same-sex rights It functioned as a Nazi tool of oppression. As he wrote in his memoir, Rainbow Warrior: “At this point, the pink triangle was the symbol for the gay movement. He wanted to imbue his new symbol with that same feeling of power, but give it a joyous, colourful and positive twist. Why a flag at all? Baker had reportedly been inspired by the US bicentennial celebrations, at which the Stars and Stripes had featured prominently. Baker’s first rainbow flag design featured prominently at the San Francisco Gay Freedom Day Parade in June 1978, just a matter of months before Milk was, tragically, assassinated. It was Milk who encouraged his friend, the gay activist Gilbert Baker, to develop the symbol. That incident led directly to the birth of the modern LGBTQ+ movement and the election of Harvey Milk to public office in California – one of the first openly gay people to achieve this in the US. The history of the rainbow flag can be traced back to the 1969 Stonewall riots in New York City. Whether you consider this a welcome form of support for diversity and inclusion or simply opportunistic “rainbow-washing” on the part of some major brands, the adoption of the multi-coloured flag raises a number of interesting IP issues about ownership, appropriation and free use. It’s impossible to miss the rainbow flag during the annual Pride festivities, but these days this colourful banner is as likely to be found alongside a corporate logo as it is in the arms of a flag-waving LGBTQ+ activist.
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Support for diversity and inclusion or simply opportunistic “rainbow-washing”? What does the adoption of the rainbow mean for the credibility of an iconic symbol?