Judge wants AG’s Office to clarify defense in copyright ownership claim for the Bahamian flag

NASSAU, BAHAMAS — A Supreme Court judge has ordered that the Attorney General’s Office provide clarity to its defense against claims made by a man who asserts to be the inventor and owner of the Bahamian flag copyright. 

In a November 24 decision, Justice Neil Brathwaite instructed the Attorney General’s Office—the defendant in the case—to submit a re-amended defense within 21 days, explicitly outlining which correspondences referenced by the claimant, James Alexander Darling, are considered fraudulent and addressing the necessary course of action. Failure to comply within the stipulated time frame will result in the striking out of the defense.

Darling’s case relies on purported correspondences suggesting that his sister filed a copyright on his behalf in 1964, with subsequent acknowledgments from the government regarding his ownership of the copyright claim and related infringements. He contends that without a license, the government utilized the Bahamian national flag design in 1973, similar to his copyrighted Fun in The Bahamas design.

A judge previously declined to strike out Darling’s copyright claim against the Bahamas government. The government, via the Attorney General’s Office, contends that there is no copyright to infringement of Darling’s claims and asserts that the correspondences he is relying on are false. Reverend Dr Hervis Bain, now deceased, has long been credited as the creator of the Bahamian flag and coat of arms.

In his decision, Justice Braithwaite stated: “This case, in my view, contains a number of curious features which would best be resolved at trial and about which it would perhaps be wise to say no more at present, no evidence having been led.

“Considering the intrinsic justice of the case, I decline to strike out the defense and order instead that the defendant, within 21 days of the date of this judgment, file a re-amended defense clarifying the defense, particularly which of the correspondence is alleged to be fraudulent and what exactly is being contended with respect to the remainder. Failing this, the defense will stand as struck out.”