copyright
Adapting the US FLAG for subversive activities
<p>I have noticed more and more black and white American flags with blue lines in a black and white field using OUR copyrighted AMERICAN FLAG? Some have hideous comic skulls included. Plus some now being used by racial and civil war extremists incorporate Confederate Flag images and vile images of snakes and guns while they readily use our AMERICAN FLAG as a background. This has to be illegal. Is it illegal to take the American Flag and adapt it to your own racist or sexist messages?</p>

<p>The US flag is not protected by copyright. Nothing as old as the flag is protected by copyright under US law. Indeed no work published in the US prior to 1925 is now protected, except for works of non-US origin protected under the Uruguay Round Agreement Act (URAA)</p>
<p><a href="https://www.law.cornell.edu/uscode/text/4/8" rel="nofollow noreferrer">4 USC sec 8</a> purports to PRESCRIBE the treatment of the flag, and paragraph (g) says:</p>
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<p>(g) The flag should never have placed upon it, nor on any part of it, nor attached to it any mark, insignia, letter, word, figure, design, picture, or drawing of any nature.</p>
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<p>However, as <a href="https://en.wikipedia.org/wiki/United_States_Flag_Code" rel="nofollow noreferrer">this Wikipedia article</a> points out, 4 USC 8 and related sections are advisory, not binding, and no penalty is provided for violating them. <a href="https://www.law.cornell.edu/uscode/text/4/3" rel="nofollow noreferrer">4 USC 3</a> provides a $100 fine: or 30 days jail time for:</p>
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<p>Any person who, within the District of Columbia, in any manner, for exhibition or display, shall place or cause to be placed any word, figure, mark, picture, design, drawing, or any advertisement of any nature upon any flag, standard, colors, or ensign of the United States of America; or shall expose or cause to be exposed to public view any such flag, standard, colors, or ensign upon which shall have been printed, painted, or otherwise placed, or to which shall be attached, appended, affixed, or annexed any word, figure, mark, picture, design, or drawing, or any advertisement of any nature; or who, within the District of Columbia, shall manufacture, sell, expose for sale, or to public view, or give away or have in possession for sale, or to be given away or for use for any purpose, any article or substance being an article of merchandise, or a receptacle for merchandise or article or thing for carrying or transporting merchandise, upon which shall have been printed, painted, attached, or otherwise placed a representation of any such flag, standard, colors, or ensign, to advertise, call attention to, decorate, mark, or distinguish the article or substance on which so placed shall be deemed guilty of a misdemeanor and shall be punished by a fine not exceeding $100 or by imprisonment for not more than thirty days, or both, in the discretion of the court. The words “flag, standard, colors, or ensign”, as used herein, shall include any flag, standard, colors, ensign, or any picture or representation of either, or of any part or parts of either, made of any substance or represented on any substance, of any size evidently purporting to be either of said flag, standard, colors, or ensign of the United States of America or a picture or a representation of either, upon which shall be shown the colors, the stars and the stripes, in any number of either thereof, or of any part or parts of either, by which the average person seeing the same without deliberation may believe the same to represent the flag, colors, standard, or ensign of the United States of America.</p>
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<p><a href="https://www.law.cornell.edu/uscode/text/18/700" rel="nofollow noreferrer">18 USC 700</a> <strong>was</strong> a criminal statute punishing anyone who:</p>
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<p>mutilates, defaces, physically defiles, burns, maintains on the floor or ground, or tramples upon any flag of the United States</p>
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<p>But 18 USC 700 was struck down by the US Supreme Court as a violation of the First Amendment in <a href="https://en.wikipedia.org/wiki/United_States_v._Eichman" rel="nofollow noreferrer"><em>United States v. Eichman</em>, 496 U.S. 310 (1990)</a> Se also the <a href="https://www.law.cornell.edu/supremecourt/text/496/310" rel="nofollow noreferrer">full text of the decision</a>.</p>
<p>The decision said, in relevant part:</p>
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<p>The Government concedes in these cases, as it must, that appellees' flag burning constituted expressive conduct, Brief for United States 28; see <em>Johnson</em>, 491 U.S., at 405-406, 109 S.Ct., at 2540, but invites us to reconsider our rejection in Johnson of the claim that flag burning as a mode of expression, like obscenity or &quot;fighting words,&quot; does not enjoy the full protection of the First Amendment. Cf. <em>Chaplinsky v. New Hampshire</em>, 315 U.S. 568, 572, 62 S.Ct. 766, 769, 86 L.Ed. 1031 (1942). This we decline to do.4</p>
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<p>...</p>
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<p>Although the Flag Protection Act contains no explicit content-based limitation on the scope of prohibited conduct, it is nevertheless clear that the Government's asserted interest is &quot;related 'to the suppression of free expression,' &quot; 491 U.S., at 410, 109 S.Ct., at 2543, and concerned with the content of such expression. The Government's interest in protecting the &quot;physical integ rity&quot; of a privately owned flag5 rests upon a perceived need to preserve the flag's status as a symbol of our Nation and certain national ideals. But the mere destruction or disfigurement of a particular physical manifestation of the symbol, without more, does not diminish or otherwise affect the symbol itself in any way.</p>
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<p>...</p>
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<p>As we explained in <em>Johnson, supra</em>, at 416-417, 109 S.Ct., at 2546:</p>
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<p>&quot;[I]f we were to hold that a State may forbid flag burning wherever it is likely to endanger the flag's symbolic role, but allow it wherever burning a flag promotes that role—as where, for example, a person ceremoniously burns a dirty flag—we would be . . . permitting a State to 'prescribe what shall be orthodox' by saying that one may burn the flag to convey one's attitude toward it and its referents only if one does not endanger the flag's representation of nationhood and national unity.&quot;</p>
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<p>Although Congress cast the Flag Protection Act of 1989 in somewhat broader terms than the Texas statute at issue in Johnson, the Act still suffers from the same fundamental flaw: It suppresses expression out of concern for its likely communicative impact.</p>
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<p>The above quotes without acknowledgement <a href="https://en.wikipedia.org/wiki/West_Virginia_State_Board_of_Education_v._Barnette" rel="nofollow noreferrer"><em>West Virginia State Board of Education v. Barnette</em>, 319 U.S. 624 (1943)</a> where the majority opinion includes the often-quoted passage:</p>
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<p>If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.</p>
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<p>Any legal device to prohibit modified versions of US flags, particularly when these are in fact being used to make or symbolize political arguments or positions, would fall under the same rule, and would be equally unconstitutional.</p>
