Wikilegal/Flags and logos from international organizations

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This page discusses whether the extraterritorial[1] and international status of organizations[2] eliminates their ability to receive copyright protection, placing all of their works in the public domain.

Complete analysis of this question involves consideration of two components.[3] First, it must be determined how the U.S. treats works from foreign authors and international organizations under its implementation of the Berne Convention. This analysis depends on dissection Section 104 of the Copyright Act, which contains provisions relating to national origin requirements. Second, it must be determined whether any sui generis protection exists for works created by specific agencies.

Summary of findings[edit]

While international organizations such as the U.N., NATO, and the Olympics operate at an international level that may appear to exist everywhere and nowhere at the same time, this does not mean that nations throughout the world, including the U.S., have not extended copyright protection to their associated works.

The extraterritorial status of such organizations does not appear to be of any consequence when publication can occur anywhere in the world. Even if the logos and flags of an international organization were created in a location with extraterritorial status, if the creator of the work was affiliated with a treaty signatory country, copyright interest in the logo or flag would still be created. Considerations relating to whether the works are subject to a work made for hire or assignment agreements do not alter this determination.[4]

In addition, countries such as the U.S. have created several sui generis protections relating to works from international organizations, further ensuring that their associated elements do not fall in the public domain. Works from the U.N., the Organization of American States, and the Olympics fall under such protection measures.

Thus, in order for a work of an international agency to be ineligible for copyright protection, the work would have to come from an individual with a nationality or domiciliary status outside of the “international copyright fold” (such as Afghanistan) and from an organization outside of the U.N., the O.A.S. and the Olympics.[5] Additionally, a work created under a work for hire agreement before 1978 might not be protected by copyright. Given the unlikelihood and difficulty of assessing these events,[6] it is not correct to state that the flags and logos of international organizations are safely in the public domain because of extraterritoriality concerns.

National origin requirements for U.S. copyright protection[edit]

Section 104 of the U.S. Copyright Act defines the requirements for protection relating to national origin. A published work is subject to protection under U.S. copyright law if, on the date of first publication, one or more of the authors is a “a national or domiciliary of the United States, or is a national, domiciliary, or sovereign authority of a treaty party, or is a stateless person, wherever that person may be domiciled.”[7] Thus, regardless of the geographical location of where a work is published, the work is eligible to receive copyright protection in the U.S. as long as one of the creators of a work is from a “treaty party.”[8] The term “treaty party” refers to “a country of intergovernmental organization other than the United States that is a party to an international agreement.”[9] Those agreements include the Berne convention and the Universal Copyright Convention, amongst others.[10]

The practical effect of this statute is that the geographical location of publication of a work is not determinative as to whether a work is eligible to receive copyright protection. Indeed, said publication can “take place anywhere in the world--even a local[e] with which the U.S. has no treaty relations” and copyright protection will still be granted as long as at least one author “bears the appropriate status.”[11]

Thus, even if a logo or flag for an international organization was created in an extraterritorial, international location, the U.S. could very well still afford copyright protection for the work. Said flags and logos would not automatically enter the public domain simply because of the location of their creation or publication. Given that “publication can take place anywhere in world,” it follows that publication can occur within or via international organizations.[12]

Because the international organizations are likely to receive copyright interest in the works via an assignment or work made for hire agreement, it is important to consider whether the existence of such arrangements would alter the ability of the organization to hold a copyright in the work. If the creator of the work in question has the aforementioned capability of obtaining copyright protection,[13] and does in fact obtain such copyright protection for the work, then a transfer of rights under an assignment or work made for hire agreement would be valid.[14] This is true even if the transfer is to “an alien who would not be eligible to obtain copyright protection as an author.”[15]

Given these considerations, it would thus appear that the mere international and extraterritorial status of organizations such as NATO and the U.N. does not place their works into the public domain.[16]

Additional sui generis protections[edit]

The U.S. provides several special copyright and intellectual property protections for works created by certain enumerated international organizations. Section 104 of the Copyright Act states that works “published by the United Nations or any of its specialized agencies, or by the Organization of American States” are subject to full copyright protection.[17] In addition, the Amateur Sports Act of 1978 prohibits the unauthorized use of the Olympic symbol, emblem, and other identifying information.[18] Depending on the organization in question, it is possible that other forms of sui generis protection exist as well.

These special forms of intellectual property protections cover a wide swath of materials produced by international organizations and provide an additional reason why the flags and logos of the U.N., the O.A.S., and the Olympics are not in the public domain.

References[edit]

  1. In this discussion, the term extraterritorial refers to the state of being exempt from the jurisdiction of local law.
  2. Such as NATO, the U.N., INTERPOL, EU, and the Olympics
  3. It may be just as important to note what issues do not appear to be in need of determination here. Importantly, the specific inquiry does not involve determination as to whether flags and logos are themselves subject to copyright protection. The doctrines of originality, de minimis, and governmental works may limit the general protection of flags and logos.
  4. See Nimmer on Copyright §5.10[B].
  5. See Nimmer on Copyright §5.15[B].
  6. Again, the existence of copyright protection for such flags in logos may be called into question by other copyright doctrines, such as originality and governmental works.
  7. 17 U.S.C. § 104(b)(1).
  8. See Nimmer on Copyright § 5.07[B].
  9. 17 U.S.C. § 101. Nimmer notes that usage of the term “intergovernmental organization” could have interesting implications if, for example, NATO were to join the U.C.C. See Nimmer on Copyright § 5.15[B], footnote 17.
  10. § 101 of the copyright act defines “international agreement” in relation to the following agreements: “the Universal Copyright Convention, the Geneva Phonograms Convention, the Berne Convention, the WTO Agreement, the WIPO Copyright Treaty, the WIPO Performance and Phonograms Treaty, and any other copyright treaty to which the United States is a party.”
  11. See Nimmer on Copyright § 5.07[B].
  12. See id.
  13. That is, he or she is a U.S. citizen or an individual from a nation subject to copyright relations with the U.S.
  14. See Nimmer on Copyright § 5.10[B].
  15. See id.
  16. Note, however, that in order to receive copyright protection in the U.S., the publication by a treaty party must have occurred when both the U.S. and the associated publishing nation both adhered to the treaty. Thus, the year in which a specific flag or logo for an international organization was created will be relevant to determine if copyright protection exists.
  17. 17 U.S.C. §104(b)(5). Nimmer notes that this provision departs from the contours of other copyright protection statutes in several ways. In contrast to other sections where protection stems from nationality or domiciliary status, protection here is predicated “on the entity causing first publication.” In other words, if a work is published by the U.N. or the O.A.S., it will receive copyright protection, even if the nationality of the author or the location of publication would not grant it protection. In addition, it is not required that the organization that causes such publication itself have acquired copyright ownership in the work from its author; all that is required is that the organization first publish the work. See Nimmer on Copyright §5.15[B].
  18. See 36 U.S.C. § 220506. The U.S. Olympic Committee has historically shown great vigilance in protecting its identifying information through the use of this act, the Constitutionality of which has been upheld by the Supreme Court. See San Francisco Arts & Athletic, Inc. v. United States Olympic Committee, 483 U.S. 522 (1987).