Are flags copyrighted? Some are and some aren’t. The U.S. flag and other federal government flags are in the public domain and free to reproduce. State, foreign, and privately designed flags follow different rules, and any flag — public domain or not — can still be restricted by trademark law when you use it in commerce.
When a Flag Design Qualifies for Copyright
Copyright protects original works of authorship fixed in a tangible medium, and flag designs fall within the category of pictorial and graphic works.1Office of the Law Revision Counsel. 17 US Code 102 – Subject Matter of Copyright: In General The requirement is originality. The Copyright Office has long held that common geometric shapes, standard symbols like arrows or five-pointed stars, and simple color combinations cannot be registered.2U.S. Copyright Office. Compendium of US Copyright Office Practices – Copyrightable Authorship: What Can Be Registered A flag made of nothing but two horizontal stripes would almost certainly fail that test.
The bar itself is low. The Copyright Office describes it as “extremely low,” requiring only a “slight amount” of creative expression.2U.S. Copyright Office. Compendium of US Copyright Office Practices – Copyrightable Authorship: What Can Be Registered A flag with an original illustration, a distinctive arrangement of non-standard elements, or a complex emblem is far more likely to qualify. Copyright kicks in the moment the design is fixed, with no registration required, though registration is what unlocks the ability to sue for infringement and collect statutory damages.
The American Flag and Other Federal Flags
The Stars and Stripes and every other official federal flag sit in the public domain. Title 17, Section 105 of the U.S. Code bars copyright protection for any work prepared by a federal employee as part of their official duties, and the legislative history is explicit that this places all U.S. government works, published or unpublished, in the public domain.3Office of the Law Revision Counsel. 17 USC 105 – Subject Matter of Copyright: United States Government Works You can print the American flag on a T-shirt, use it in a film, or reproduce it in an advertisement without anyone’s copyright permission.
Military branch flags and emblems follow the same copyright rule but pick up a second layer of protection through trademark law. Federal law authorizes the Secretary of each military branch to license trademarks and service marks related to military designations and likenesses.4Office of the Law Revision Counsel. 10 US Code 2260 – Licensing of Intellectual Property: Retention of Fees Displaying an Army or Navy flag is one thing; putting one on merchandise you sell without a license can run into trademark problems.
State, Local, and Foreign Flags
Section 105’s public domain rule applies only to the federal government. Whether a state’s official works, including its flag, are copyrightable depends on that state’s own law. Some states mirror the federal approach and place government works in the public domain. Others have no clear rule, and a handful presume government documents are copyrightable. As a practical matter, most state flags are a seal on a solid background, and those simple designs would struggle to meet the originality threshold anyway. If you plan to use a state or city flag commercially, particularly a distinctive one, check that state’s law rather than assuming it’s free.
Foreign flags are the same story country by country. Many nations treat their flags as public domain; some retain rights over their national symbols. The bigger restriction comes from trademark law. Under Article 6ter of the Paris Convention for the Protection of Industrial Property, member nations agree to block the registration and commercial use of other countries’ flags, coats of arms, and state emblems as trademarks without the country’s authorization.5WIPO. Article 6ter of the Paris Convention – Marks: Prohibitions Concerning State Emblems, Official Hallmarks, and Emblems of Intergovernmental Organizations All Paris Convention and WTO members are bound by it.6WIPO. General Information on Article 6ter Editorial and educational use of a foreign flag is almost never a problem. Putting one on a product label in a way that implies official government endorsement is where the trouble starts.
Trademark Limits That Apply Even to Public Domain Flags
Even when a flag’s design is in the public domain, trademark law can still limit how you use it commercially. Federal law flatly prohibits registering the flag, coat of arms, or other insignia of the United States, any state, any municipality, or any foreign nation as a trademark.7Office of the Law Revision Counsel. 15 US Code 1052 – Trademarks Registrable on Principal Register; Concurrent Registration You cannot build a brand identity around the American flag or any other government flag in a way that would function as a source-identifying trademark.
Flag imagery can still appear on products. Any store around the Fourth of July stocks American flags on napkins, sneakers, and everything in between. What the law blocks is anyone claiming exclusive trademark rights over the flag itself. Those products use the flag as decoration, not as a brand identifier, and that distinction is what keeps them legal.
Privately Designed Flags
Flags created by private individuals and organizations follow the normal rules of copyright. If the design is original enough, it’s protected from the moment it’s created, and the creator controls who can reproduce it. When a private flag also functions as a brand identifier, it picks up trademark protection on top of copyright.
The two Pride flags show how much the designer’s choice matters. The original rainbow Pride flag, designed by Gilbert Baker in 1978, is in the public domain because Baker intentionally gifted it to the community. Anyone can reproduce it without permission or payment.
The Progress Pride flag, designed by Daniel Quasar in 2018, works differently. Quasar holds the copyright and licenses the design under Creative Commons Attribution-NonCommercial-ShareAlike 4.0 terms for non-commercial use. Community events, personal displays, and educational projects are covered by that license. Manufacturers and businesses that want to sell products featuring the design need to contact Quasar’s team for a commercial license. Larger companies are expected to pay; smaller creators may receive a free license on request.
A flag representing a movement rather than a corporation isn’t automatically free to use. The designer’s intent is what controls.
Fair Use for Flags in Films, News, and Other Media
When a copyrighted flag appears in a film, news broadcast, photograph, or other creative work, the fair use doctrine may protect the use. Section 107 of the Copyright Act lays out four factors courts weigh: the purpose and character of the use (commercial versus nonprofit, transformative versus copying), the nature of the copyrighted work, how much of the work was used, and the effect on the market for the original.8U.S. Copyright Office. US Copyright Office Fair Use Index
A copyrighted flag appearing incidentally in the background of a news report or documentary usually qualifies as fair use, because the flag isn’t the focus and the use doesn’t compete with the copyright holder’s market. Reproducing a copyrighted flag as the central design on merchandise you sell is a much harder case. Courts evaluate fair use case by case, and there are no bright-line rules about what percentage of a work you can safely borrow.8U.S. Copyright Office. US Copyright Office Fair Use Index
The Flag Code Is Not a Copyright Rule
The U.S. Flag Code is sometimes confused with copyright restrictions, but it covers something entirely different. Found in Title 4 of the U.S. Code, it sets out guidelines for how civilians should display and handle the American flag: don’t fly it upside down except as a distress signal, don’t use it as clothing or bedding, don’t use it for advertising.9Office of the Law Revision Counsel. 4 USC 8 – Respect for Flag The language is advisory. It was written as a codification of existing customs for civilian groups not bound by military regulations, and there are no penalties for civilians who violate it. A separate provision, 4 U.S.C. § 3, does make it a misdemeanor to place advertisements on the flag or use the flag for advertising purposes, but that statute applies only within the District of Columbia.10Office of the Law Revision Counsel. Title 4, Chapter 1 – The Flag Nothing in the Flag Code affects whether you can legally reproduce the flag’s design.