Heraldic Policy – Techniques of Digital Heraldry

Who Owns the Copyright to the LoARs?

A couple of days ago, I was working on getting some old LoARs ready for publication online when I stopped to consider who held the copyrights to them.

[As with all of the legal commentary on this site, the below should be read with the knowledge that I am not a lawyer, and none of this should be taken as legal guidance — I’m just attempting to describe a somewhat-obscure issue as best I understand it.]

Because the letters were created by volunteers rather than employees, they are not “work for hire,” and I don’t think any past Sovereigns have been asked to sign agreements on the subject.

That would suggest that the copyrights to the LoARs remained with their original creators — the Sovereigns and their staff.

Breaking up is hard to do, and the split at the heart of this case was no exception. … Mr. Losieniecki agreed to serve … and participated in that event as an “official volunteer.” This, they argue, means the photographs are “works made for hire” under the Copyright Act… On that issue, the answer is clear… the Court finds that Mr. Losieniecki owns the photographs at issue […] “work made for hire” […] applies only to works produced by employees or, if a written contract exists, independent contractors. An unpaid volunteer for a nonprofit organization is neither.

— Judge Ranjan in Hubay v. Mendez, 2020

However, at least since 1997 or so, when the Sovereigns have caused the LoAR to be published online every month, it has appeared with a statement and link at the bottom of the page along the lines of “Copyright © 1997 Society for Creative Anachronism, Inc.”

It seems credible that if a volunteer publishes something they wrote and causes it to include a statement that the organization is the copyright holder, that in and of itself might be sufficient to transfer the copyright.

The writing does not require any “magic words . . . Rather, the parties’ intent as evidenced by the writing must demonstrate a transfer of the copyright.” …. “Section 204(a), by its terms, imposes only the requirement that a copyright transfer be in writing and signed by the parties from whom the copyright is transferred…”

— Judge Huff, Johnson v. Storix, 2017

On these grounds, the existence of the letters, signed and authored by the Sovereigns, and posted with a statement of copyright by the SCA, seems evidence of the intention to grant copyright to the Society.

(This argument is weakened by the fact that the copyright statements were applied by the Morsulus Herald or post-meeting clerk at the time that the files were uploaded to the web, rather than written by the Laurels themselves, but given that Morsulus and Silver Staple are working under the direction of Laurel, and that each Laurel sees these copyright statements many times and none of them have ever said “oh, no, wait, that’s a mistake, I didn’t intend to transfer the copyright to the letters I wrote,” this still seems like a clear indication of their intent.)

As to the letters created before 1996 or so, it’s quite possible that nobody ever considered their copyright status — I certainly haven’t been able to find any written mentions of it.

To my understanding, this likely means that the copyright to those early letters remains with the original authors, but that everyone involved understands that they have granted the SCA permission to use those letters in all of the ways that the Society typically does, including publishing, excerpting, citing, summarizing, and transforming them.

Thankfully, the people who sign up to be Sovereigns are pretty committed to the heraldic community, such that even if there was an acrimonious feud, it seems unlikely that any would try to revoke that permission. (And even if they did, some use would likely still be allowed under the “fair use” doctrine of U.S. law.)

Why You Can’t Register Marshalled Armory

Considerations of armorial designs including straight-line per-pale or quarterly field divisions often include a discussion of whether they have “the appearance of marshaling.” Putting aside the question of how we answer that question (already ably addressed elsewhere, see here and here), one might wonder why this is an issue — why doesn’t the SCA’s College of Arms register armory that has the appearance of marshalling?

I believe the answer is that marshalled arms were not issued as such by period heraldic authorities, nor did newly-armigerous families assume already-marshalled arms.

Instead, each individual coat of arms was granted (or assumed) independently, and it was only after that point they were ever combined via impalement or quartering (or sometimes more esoteric arrangements as seen in Iberia).

A heraldic authority might confirm that a particular individual had the right to display each of the individual quarters, but they were still separable, and (for example) a noble might split their titles and lands between two offspring, who would each inherit the armory associated with specific estates, in a process we might think of as “un-quartering.”

It’s possible that there were occasional exceptions to the above principle — for example, Birgitta Lulli, Pelican emeritus, reports that in post-period Scandinavia, some nobles adopted new coats with quarters that had not been independently granted, in an effort to make themselves seem of equal status to older families which bore quartered arms — but I haven’t ever encountered any period examples of arms being granted in already-quartered form.

An individual either has rights to each particular coat or does not; once they have secured those rights, it’s up to them as to whether they impale or quarter them, or display the one they think is most prominent and ignore the other, or display one in one place and another elsewhere, or whatever they’d like.

Therefore, if you want to display arms that have the appearance of marshaling, you must register each individual design, after which point you are free to display them together, pass them on to your heirs, and so forth. (Just like in period, where if you wanted to display the arms of Savoy quartered with the arms of Loraine, you had to first achieve the lordship of each territory, at which point you could fly them together.)

This policy has been in place since the early years of the Society, when Ioseph of Locksley, second Laurel Herald, wrote in the June 1973 LoAR that “… it is the policy of the Imperial College to register the individual parts of marshalling rather than the full marshalling itself… Let [a couple wishing to display marshalled arms] submit individual applications and emblazons [for each part].”

[January 2023 — Edited to add:] An Iberian example of seemingly-quartered arms was recently circulated, dating to 1524. Nonetheless, these examples are rare, and appear late, and are not the foundation of our practices.

A Revised Armory Conflict-Checking Checklist

[Editor’s Note: This is a revised version of a checklist I assembled in 2019, which was rendered out-of-date by the new rules for considering changes to the field approved by the March 2021 Cover Letter. This updated version of the document reflects those changes. — Mathghamhain]

SENA devotes over 10,000 words to conflict checking armory, which the below guide attempts to summarize in one-twentieth of the space.

Many details have been omitted, so references are included to the relevant sections of SENA to facilitate additional research as needed. Continue reading “A Revised Armory Conflict-Checking Checklist”

A Badge for Heraldic Artists

Most people who’ve had any contact with the Society’s College of Arms would recognize the badge of the Heralds — “vert, two straight trumpets in saltire Or” — which may generally be displayed by anyone working for or associated with the College.

But there wasn’t a distinctive badge reserved specifically for the artists who assisted the College by illustrating armory, a role that in period was referred to as a “herald painter.” (For more on the history of herald painters, see this essay by Robert Parsons, who held that role for the British College of Arms.) Continue reading “A Badge for Heraldic Artists”

An Updated Catalog of IAP Submissions

Back in 2017, I dug through a decade’s worth of LoARs and posted a set of examples of Individually Attested Pattern submissions.

I’ve updated that listing a handful of additional times over the subsequent years, but when I was gathering additional items for this update I realized I wanted to make a few changes to the way the information was organized and figured that was a good opportunity to create a new document, which I have now posted as “A Catalog of Individually Attested Pattern Submissions.”

Heraldic Authority In the Earliest Bylaws of the SCA

The Society for Creative Anachronism started as a party in 1966 and was named as a joke, but over the subsequent years elaborated a set of governing policies which today control an international not-for-profit organization with over a hundred thousand participants.

It’s interesting to look back at the early practices of the organization to see the seeds that grew into the structure we know today, and so I was pleased to discover a copy of the earliest bylaws archived on the web site of Master Justin du Coeur, a former historian of the East Kingdom. Continue reading “Heraldic Authority In the Earliest Bylaws of the SCA”

An Overview of Historical Armory Practices in England

The best part of this little booklet from the Heraldry Society in England is that it provides dates for when various types of armorial practices were introduced, along with citations to the reference works they drew those dates from.

Historic Heraldry Handbook
(PDF, 20 pages)

What Does the Brigantia Herald Do?

On April 25, 2020, as part of the East Kingdom Officer Schola online event, Master Malcolm Bowman led a session reviewing the role of two kingdom-level heraldic positions he holds, including that of Brigantia Herald.

I am attaching my notes from this session below in hopes that they might be of interest to other members of the community, but please be aware that this is not an official transcript and may contain errors or omit relevant details.

The Brigantia Herald has overall responsibility for all heraldic activity in the kingdom, including courts, events, and submissions. Continue reading “What Does the Brigantia Herald Do?”

What Does the Eastern Crown Herald Do?

The Eastern Crown Herald is the East’s royal court herald, sometimes styled “Vox Regis,” or voice of the crown. Continue reading “What Does the Eastern Crown Herald Do?”

Rules on the Appearance of Armorial Displays Within Armory

Some elements are so distinctively suggestive of independent armorial displays that there are rules that limit their use as part of a larger design.

Inescutcheons, cantons, pennons, and sails should not look like they are displaying secondary arms that the submittor has no right to display.
— [Artair MacArtair of Orkney, Return, May 1983 LoAR]

As noted above, this protection applies to single escutcheons, cantons, banners, and sails, but the rules are slightly different for each of these shapes, as I will catalog further below. Continue reading “Rules on the Appearance of Armorial Displays Within Armory”