The Winter Olympics and the Use of Flags in Advertising

In case you hadn’t noticed, the Sochi 2014 Winter Olympic Games have begun! The Opening Ceremony dazzled us with its’ display of history, culture and extravagance where athletes from all over the world took center stage to compete in this illustrious event. Flags from numerous countries are hung over the stadium and are displayed each time there is a medal ceremony following an event.

You may say to yourself, ‘Why is this advertising lawyer talking about flags?’ Firstly, it’s because once a lawyer, always a lawyer, and I can no longer go through life like a normal person watching the Games without considering the legal issues. And, secondly, (more to the point), there are laws and regulations that govern the depiction of flags for commercial purposes, and they are different in every country.

These laws and regulations do not prevent or prohibit us as private individuals taking a photo of flags and putting it up on our Facebook Timeline to boast to our friends about our latest overseas sojourn, but they do govern the use of images containing flags by brands for advertising and marketing purposes.

Here in the US, most states have statutes that prohibit the use of the American flag and state flags in advertising. At the federal level, The United States Flag Code is a set of advisory rules for the display of the flag. One of its’ purposes is to ensure proper respect for the US flag on a voluntary basis by private citizens. The provision in the Code relevant to brands is this: ‘The flag should never be used for advertising purposes in any matter whatsoever’ (4 US Code Chapter 1, section 8(i)).

This is a broad statement intended to cover all uses whether physical or in photos. Although the Code was drafted in 1923, it has constantly been amended and can now be argued to include online advertising on social media platforms such as Facebook, Twitter, blogs and video sites such as YouTube, Vine and vimeo.

So, what does this mean? The effect of this section is that brands must be mindful if they intend to use a photo taken at the Olympics that displays the US flag in advertising, because they may be in violation of the Code. They should determine whether or not posting an image featuring the US flag on their brand’s social media channels will violate the Code and if so, expose them to risk.

Is any depiction of the flag by a brand construed as advertising? Is a simple congratulatory tweet or Facebook post to a US athlete that shows the flag in the background ‘advertising’ that violates the Code? The answers are not clear and will depend on a variety of factors. Relevant considerations include: any copy or logo overlay on the image, whether the image is approved by the IOC or the US Olympics Committee, whether the image is governed by a license which does not permit images to be scrubbed or altered, and, how the brand intends to use the image.

What is the real risk? Arguably, the risk may not be deemed high since the Code does not contain any provisions for enforcement of it, and there are no fines or penalties set out. This does not mean that individual states or the Federal Government (if the offense is committed in the District of Columbia) could not take steps to enforce it, if they chose to. Even if the risk is not high, there could be a potential PR backlash depending on the context of the advertisement.

So brands should carefully consider the use of any photos that show the US flag (especially during the Games) and advertising lawyers should try to enjoy the Olympics like normal people do.

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