A TRULY INCLUSIVE LGBTI SOUTH AFRICAN FLAG?

The P2-INK flag was launched at MCQP

Mambaonline.com recently reported that P2-INK, a Cape Town company, had launched a trademarked version of the well know global rainbow flag to become the new South African LGBTI flag. I initially commented on the article itself but was asked by the editor to write this opinion piece to further the debate. Let me be clear: this is my opinion but it reflects many comments made both online and in conversations held recently.

There are essentially two questions here as I see it: firstly, and most importantly, do we need a South African LGBTI flag; and secondly, is this latest version acceptable to all of us and properly constituted?

South Africa’s recent embarrassing track record relating to LGBTI issues at the UN and elsewhere notwithstanding, our nation is still viewed throughout Africa and the world as a guiding light for human rights in general and LGBTI rights specifically. We may not have been the first to allow gay marriage, but we certainly pioneered a truly free and fair constitution. When our democracy was seeking an inclusive national flag along with other essential symbols, broad and careful consultation, debate and consideration took place.

I advocate that such consultation is necessary here. Do we need a South African version of the rainbow flag that thereafter sets us apart from our oppressed brothers and sisters throughout this troubled continent, one that separates us rather than provides a single unifying symbol of pride against homophobia? Do we need to be distinct in the world, fully identified by our geography and people in relation to the global community, so that others can indeed do the same?

It is generally agreed that the gay rights movement began in the USA. The Gilbert Baker rainbow flag was born in 1978 in San Francisco, originally with eight colours (including hot pink and indigo blue) but these were removed for practical reasons a short time later. There exists a US gay flag that removes the red and white stripes of the national flag and replaces them with the six rainbow bars of the Baker flag. Yet a visual examination of pride events across the USA reveals very few of such flags in evidence – indeed it is the universal rainbow flag that features most prominently.

Travel anywhere in the world, either in person or online, and you will see the 1979 Baker original rectangle panel or a slightly modified version of that flag. Our global community of lesbians and gays have fully adopted it and regularly use it. I know of no patent, copyright or trademark relating to the universal six bar design. Practically speaking, it is easy to recreate, print or physically manufacture.

It has certainly been modified and applied in innumerable ways in the past 30 years. But the core remains the same. It’s readily identifiable and welcomed by communities in every corner of the globe.

In discussions I’ve held recently, it is apparent that a South African flag would be welcome, but ultimately would be more of a novelty as the lesbians and gays I spoke with said they’d probably fly both the South African and global pride rainbow flags alongside one another to advocate national solidarity within the community. Many already own a version of the global pride flag and adding to it is seemingly unnecessary.

“…I’m not sure that this has been very well thought out or that sufficient consultation with the wider South African LGBT community has taken place.”

A national debate is wholeheartedly necessary to discuss this question. If something is to be regularly used to represent our community, then most of us need to buy into that. This has to, in our South African context, include as diverse an audience as possible including all races, language groups, political and social groups, ages and people from various economic backgrounds. Our nation and our constitution were built on consensus and dialogue. So should any significant developments affecting the LGBTI community.

Turning to the P2-INK South African LGBTI flag design, there have been typically mixed reactions. Certainly, the design employed isn’t very innovative and this view was shared by a significant proportion of people asked to consider it. Ultimately, the debate has been less about the actual design, and more about the manner in which it has come about.

South African copyright law protects original visual, written and audio work from exploitation. Our laws provide for significant penalties for infringement of trade mark, the visual devise of a company such as Coca-Cola, that cannot be recreated or used without the owner’s express permission as it is physically the intellectual property of the company, nor can any design confusingly similar to the original be used.

The application procedure takes approximately two years on average before approval and must thereafter be renewed every 10 years with CIPRO (Companies Intellectual Property Registration Office; see www.cipro.co.za). An unregistered trade mark can be defended in terms of common law, especially relating to copyright.

Not all designs submitted to CIPRO are approved. For instance, when someone uses the South African flag in a design, the design will be asked to be amended, as this design would otherwise be too close and confusingly similar to national symbols protected by the state or of public importance. An example of acceptable design would be the Proudly SA logo and campaign.

Trademarking a design implies explicit ownership of the intellectual property and herein I have a serious problem when it comes to the P2-INK flag design.

The base design of this particular flag is the Gilbert Baker flag of 1979 and thus remains unchanged. The only addition is three stripes (one black, two white) that imply resemblance to the national flag. A private company has juxtaposed two public flags on top of one another with little amendment to colouration or structure and declared it the sole property of that company.

The company has stated this design is trademarked but have not clarified whether a) the design is merely claimed to be copyrighted by P2-INK, b) the design has been applied for trademark, or c) the design has officially been approved by CIPRO.

The fact that a community organisation such as Cape Town Pride appears to have adopted the P2-INK trademarked and commercial LGBTI flag, is in my opinion troubling. More so in that one of the partners in the company is said to be directly involved with Cape Town Pride. I don’t doubt that intentions are good all around but I’m not sure that this has been very well thought out or that sufficient consultation with the wider South African LGBT community has taken place.

It does not bode well within our broader culture and the current trends for greater community participation in such ventures are being overlooked. Would unique event branding (including a flag) especially developed for Cape Town Pride and its marketing not have been a better route to take?

Fundamentally, I believe our community interests should never be fully privatized, be they ecological, ideological or practical. Any company should be able to produce and market products targeted at LGBTI consumers but not with the commerci

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