Copyright, Pride, and Progress: Navigating Ownership, Representation, and Cultural Rights

Photo Credit: Marc Bruxelle/iStock

June marks the observance of love, unity, and revolution coursing throughout the history of the LGBTQ+ rights movement and community. Commemorating the Stonewall Uprising of June 28, 1969, Pride Month serves as a celebration of culture and a reminder of the continuous battle for liberation faced by the LGBTQ+ community. 

Pride Month 2023 brings a heavy air of cathartic joy amidst discriminatory anti-LGBTQ+ legislation sweeping the nation (nearly 500 anti-LGBTQ+ bills have been introduced since the beginning of 2023). Alongside the uplifting festivities and ongoing activism, commercial corporations are caving in to the pressure of bigoted protests, highlighting the phenomenon of “rainbow capitalism” that has infected Pride over the years, raising questions about corporate support and authenticity. 

Navigating the intricate landscape of intellectual property (IP) issues adds another layer to the discussion surrounding the imagery and use of the Pride flag and it’s evolving inclusive variations. As we delve deeper into the significance of these symbols, it becomes essential to explore how copyright, licensing, and cultural ownership intersect with the LGBTQ+ community’s quest for representation and empowerment.

Rainbow Capitalism Exposed

Rainbow capitalism refers to the profiteering and exploitation by corporations through targeted campaigns and merchandise signaling support for the LGBTQ+ community. While it’s encouraging to witness increasing corporate support during Pride Month, the recent removal of Pride merchandise exposes its superficiality, further exacerbating the divide between corporate interests and the community they claim to champion. Are corporations genuinely committed to advancing LGBTQ+ rights or simply capitalizing on a market opportunity?

Erik Carnell, a transgender graphic designer whose works were pulled from Target in response to recent protests, said in an interview, “Companies like Target that launch products and campaigns for Pride Month seek to profit from LGBTQ people but fail to stand by them when challenges arise… It’s a very dangerous precedent to set, that if people just get riled up enough about the products that you’re selling, you can completely distance yourself from the LGBT community, when and if it’s convenient.”

The issue of rainbow capitalism brings forth the complex question of how different communities can enforce their cultural rights to protect against appropriation or misrepresentation. Copyright is an unexpected proponent of this conversation, offering unique opportunities to creators across the identity spectrum to perpetuate and invigorate the movement.

To examine the issue of rainbow capitalism, it helps to first examine the origins and source of the rainbow itself, the original Pride flag created by American artist, designer, and activist Gilbert Baker (1951-2017) in 1978.

The Pride Flag’s Enduring Legacy 

Gilbert Baker’s creation of the Pride flag, the most iconic and widely recognized symbol of LGBTQ+ equality and freedom, was a labor of love and unity. Hand-dyed and stitched with the help of thirty volunteers at the Gay Community Center in San Francisco, the flag embodies the spirit of the community it represents. 

In Baker’s memoir Rainbow Warrior: My Life in Color, he wrote, “A true flag is not something you can really design. A true flag is torn from the soul of the people. A flag is something that everyone owns, and that’s why they work. The Rainbow Flag is like other flags in that sense; it belongs to the people.” 

Belong to the people it does, as Baker never registered the Pride flag for trademark or copyright protections (though registration is not required for either trademark or copyright protections to apply). Regardless, he was pulled into IP legal battles regarding the formalization of the flag’s IP ownership.

In 1978 Baker paired up with LGBTQ+ civil rights attorney Matt Coles to challenge an attempt by an advocacy organization from the Center where the flag was created to register the trademark in the flag. Baker remained steadfast that the Pride flag and its rights were owned by the community, forgoing compensation or formalized ownership rights, which he felt would have contradicted his philosophy and goals. Many attribute the symbols’ widespread adoption to its lack of formal registration, even Baker himself writing, “The reason the rainbow flag endures is because people own it. It means something to them.” 

But what if Baker had pursued copyright registration or a licensing model instead? Could it have served as a deterrent to the capitalist predicament facing the flag today? The 2018 Progress Pride flag controversy allows us to examine this hypothetical.

Controversy Surrounding the Progress Pride Flag

Queer multi-disciplinary designer and artist Daniel Quasar (xe/xyr pronouns) is the creator of the Progress Pride flag, a combination of the original Pride flag by Gilbert Baker, the Trans Pride flag by Monica Helms in 1999, the More Color, More Pride flag introduced by Amber Hikes in 2017, and a black stripe from the Victory Over AIDS flag, inspired by Sergeant Leonard Matlovich, to represent those lost during the AIDS crisis. This flag design “forces the viewer to confront…their own feelings towards the original Pride flag and its meaning as well as the differing opinions on who that flag really represents, while also bringing into clear focus the current needs within our (the LGBTQ+) community.”

While the Progress Pride flag quickly gained popularity, controversy struck when a viral social media post denounced the flag for its licensing and accessibility issues, claiming that the flag was inaccessible to the very community it stands for, forcing people to pay hefty licensing fees for any usage. 

In truth, the Progress Pride Flag utilizes a tiered Creative Commons license. A creative commons (CC)  is an informal licensing structure that sets out certain terms under which the copyright owner allows others to use their work according to the license type, granting certain rights to encourage widespread usage, displaying, and making of derivative works. Under the Progress Pride flag’s specific terms, non-commercial uses are free and open to all, with the option of attribution. For commercial use, Quasar lends a free license to smaller businesses and creators, while larger corporate-level entities must request permission and negotiate licensing on a scaling basis. The flag’s terms of use note, “This is where permission is most requested so that the message of the flag is retained, and support is returned to the community it serves.”

In a podcast interview, Quasar explained the rationale and journey behind xyr intellectual property decisions: 

“There was a lot of depth in my reasoning as to why I did that (CC license) [so] people didn’t understand at first. And I got a lot of pushback from people who felt like this was an iconic symbol that belongs to the community and I shouldn’t have control over it. While I get that, I firmly believe that artists deserve recognition and compensation for their work. I don’t believe in the continued stigma that art is free and artists are poor and need to be poor to be legit artists. So you can use the flag, but non-commercially. If you want to talk commercial, we can talk about it. A changing point for me was when I started to see it getting used in a way that I didn’t personally agree with. Companies were snatching it up, making stuff out of it, and selling it without my attribution attached. It was purely rainbow capitalism based marketing…If you’re going to make money off of something that I created within my community it’s only fair that you give back not just to me as the artist, but the community itself, too.”

Through licensing, Quasar aims to protect the flag from exploitation by corporations while ensuring compensation for xyr artistic work and preserving the ability to progress the movement and give back to the community. However, can one creator accurately represent the interests of a whole group? Baker certainly did not believe so and pushed against formal licensing and ownership, opting to instead commit the flag to everyone.  So, this returns us to the question: how can we protect works integral to a collective culture from misappropriation? 

The IP debates surrounding the Pride flag and the Progress Pride flag reveal the complexities and possibilities of IP to protect and promote cultural ownership and representation. Gilbert Baker’s decision not to register the trademark or copyright of the original Pride flag arguably allowed it to become a powerful symbol, embodying the united struggles and triumphs of the LGBTQ+ community.

Conversely, the licensing of the Progress Pride flag sparked debates about compensation for the artist, Daniel Quasar, and the possible protection of the messaging and symbolism of the flag against corporate exploitation. While the Creative Commons license used for the flag provides a framework for controlled usage and compensation, it also raises questions about who holds the authority to represent an entire community’s interests. Balancing the need to protect cultural works from misappropriation while ensuring inclusivity and openness is a delicate task that continues to challenge activists, creators, and the LGBTQ+ community altogether.

There are no neat answers as our communities continue to figure out how to best utilize their rights under copyright law to protect cultures and commonality while preserving individuality. Ultimately, the Pride flag remains a powerful symbol of resilience, love, and equality. Its impact transcends legal ownership and copyright debates. The flag’s strength lies in the hearts of those who wave it, wear it, and find solace, pride, and community in its vibrant colors. Whether copyrighted or unregistered, these symbols belong to the people who hold them dear and use them to inspire change.

For activists and creators grappling with the dilemmas of representation, I believe Monica Helms said it best in her autobiography More Than Just a Flag, “The only thing an activist owns is their integrity. You lose that, and you are no longer an activist.”

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