"I am not the flag: not at all. I am but its shadow"

Two things happened twenty two years ago that still resonate within the bi community.

One was a BiCon organising team trying to do away with the sliding scale, the idea that people with less money pay less to attend BiCon. Let's just say that the reaction from the community meant that they quickly accepted they'd made a mistake, and no-one's tried that again. It was also a significant prod towards the creation and acceptance of the BiCon Guidelines which, amongst other things, set out the expectation that there will be one.

The second was the creation of the Bisexual Pride Flag:

In case you haven't seen the fuss today, BiNet USA ('an American national nonprofit bisexual community organization whose mission is to "facilitate the development of a cohesive network of bisexual communities, promote bisexual visibility, and collect and distribute educational information regarding bisexuality"') have decided that the best way to promote bisexual visibility is to..

.. try to charge at least some people and organisations to use that flag. Including someone who's just organised a great online bi pride event.

Hi @JayneBShea! We at BiNet USA are asking you to get in touch so we can discuss your use of the bisexual pride flag without any money going to our organization. Thanks for removing the flag from your site, socials or work. We know this is a lot so we hope we can work a new deal!

— BiNet USA (@BiNetUSA) April 29, 2020

Hi @JayneBShea! We at BiNet USA are asking you to get in touch so we can discuss your use of the bisexual pride flag without any money going to our organization. Thanks for removing the flag from your site, socials or work. We know this is a lot so we hope we can work a new deal!

Most bi orgs need the funds we raise via buttons, stickers and flags. We hope you show up and support then too.

I do have a tiny bit of sympathy for BiNet USA

Various people are making money off assorted bisexual things, including the flag in question, and overwhelmingly it's not the bi community. I'm bifurious about that; they're clearly bifurious about that; you, dear reader, are probably bifurious about that.

I'm also totally with them "against the commercialisation of the dream of pride". I spent a chunk of the late 90s and early 00s in various small efforts to stop the assorted bunches of 'community business leaders' actually making money off London's Pride as they tried to do, following their failure to support the community-based Pride Trust to the tune of a few tens of thousands of pounds and instead letting it go bust.¹ I still have at least one 'Pride Not Profit' banner somewhere.

This is at least consistent with being fine with use "if you’re not for profit", although it's not immediately clear whether or not they expect you to ask for permission anyway.

Having said all that, it's an utterly terrible decision

Leaving aside how this looks to the bi community – see the many comments to that thread including, if you don't mind seeing the words 'fuck' and 'off' together in tweets, clicking on the 'Show additional replies, including those that may contain offensive content' links, plus doing a search for #ourbiflag – it's very probably not even possible.

For a start, no-one else has ever thought they have the copyright. The flag's designer, Michael Page, volunteered with them at at least one point, but it could not be considered 'work for hire' rather than his to decide to do what he wanted with. At no point has anyone seen an 'I assign any copyright to BiNet USA' document.

Indeed, the oldest archive.org copy of his site BiFLag.com says it's for "free public usage". It proudly stated that it was "not patented, trademarked or service marked" to distinguish it from some symbols that were then treated as trade marks.

The flag certainly could have been registered as a trade mark at that point – compare it to the contemporary logos elsewhere on that site, where overlapping triangles dominate.² He deliberately chose not to do that.

Instead, the language moved still further: by 2002, his designs were "FREE to copy", and by 2008 they were "copyright free and in the public domain." It went on to confirm "You are welcome to use them as you wish" but then attempted to place a limit on this: "EXCEPT resell".

Unfortunately for that, 'public domain' is very well understood to exclude such conditions. All expired patents are in the public domain, for example, and if you want to use the method of Samuel Hopkins producing potash, as disclosed in the long-expired first US patent, to make money he can't stop you.³

Similarly, you can keep any and all money you make playing, recording, or reworking Gershwin's Rhapsody in Blue no matter how much his descendants would like to charge you for that⁴ or even stop you doing so today: that went into the public domain on 1st January this year.

Indeed, once something is in the public domain, it typically takes a law to get it out again: works like Kipling's books only came back into copyright in the UK for a few years following the Duration of Copyright and Rights in Performance Regulations 1995. If you want to place limits on what people can do with your work, don't say it's in the public domain.

It's also unclear whether the flag was ever copyrightable in the US anyway. The current version of the Compendium of U.S. Copyright Office Practices says that "Generally, the U.S. Copyright Office will not register a work that merely consists of common geometric shapes unless the author’s use of those shapes results in a work that, as a whole, is sufficiently creative" and "mere variations in coloring alone are not eligible for copyright protection."

Is copying the 'horizontal bars' design of lots of flags, only using a different set of colours, "sufficiently creative"? I wouldn't want to bet my organisation's reputation on it being so, but that's what BiNet USA have chosen to do.

The most laughable bit is the claim for copyright on "the bi pride colors". The actual colours can't be copyright. Even if you could copyright a colour, these ones are Pantone CMS references.

I see it now: "Hello Pantone, we'd like to copyright using three of your Colour Matching System colours.. any problem with that?" "Even we don't have copyright on a colour, but if we did, we'd say 'get lost' and we've got much better lawyers than you do."

Perhaps we should have seen this coming

Back in September, BiNet USA announced a new 'bisexual people of color' flag. It's the colours of the original bi flag, in equal proportions this time, with the brown and black that someone else added to the rainbow flag at least two years earlier.

In itself, that's great. But they also claimed copyright on it: it has a 'Creative Commons Attribution-NonCommercial 4.0 International License' that says only non-commercial use is ok without getting further permission.

That does at least leave open the ability to "remix, transform, and build upon the material", so you can alter the proportions, for example. That's probably necessary given that it's clearly a remix itself, but I still wonder just how much "creative" work the US Copyright office would see here..

.. and all it does is restrict how many other people are going to use it.

Hence the appearance of an alternative, no doubt:

And here's an alternative. Neither is copyright, feel free to use! pic.twitter.com/f35BN2LiOg

— The Bisexual Index (@bisexualindex) April 29, 2020

In an age when Sinclair Lewis's quote that "When fascism comes to America, it will be wrapped in the American flag" has never looked more true, to alienate an entire community over its flag is at best pointless and at worst self-destructive.

If BiNet USA do not accept that they've been wrong about this, they're declaring themselves irrelevant.

1. Both sets were actively biphobic too, sigh.

   In the end, the main bunch lost several hundred thousand pounds over the years in their attempt, and ended up ensuring that no 'Pride' event will be allowed to use a royal park for many years. I'd say the current organising lot are better, except that they aren't. ↩

2. I still think those and the Dutch 'moBIus' triangle are better logos than the flag, but unlike Michael, I'm ok with identifying as queer…

    ↩

3. Well, his descendants can't: he died in 1818. ↩

4. Their behaviour in other matters suggests that's 'really quite a lot'. ↩