This Article is submitted by –
- Shrija Verma
The Oxford Dictionary defines an Emoji as ‘A small digital image used to express an idea or emotion in emails, on the internet, on social media, etc.[1] The word ‘Emoji’ initially meant pictogram – An acting symbol used to convey a meaning with object or images such as those in computer icons.
Emojis were invented in Japan in 1999 by Shigetaka Kurita for mobile phones. She worked as a team member of DoCoMo’S I-mode.[2] In the beginning, the hearts and symbols used on Japanese pagers and weather forecasts respectively inspired her and she started to design emojis. Emoji is a Japanese word . In the word Emoji,“E” refers to picture and “Moji” refers to character. Shigetaka Kurita designed the first emoji which was 12 by 12 pixels and inspired by the manga art and kanji characters in Japanese. The World Emoji day is celebrated on 17 July. Before Emojis’ came into existence, Emoticons were used to express feelings by using a combination of punctuation marks. For the most part, these came of age as the 🙂 and 🙁 and 8-D of chatroom conversations in the 1990s.
Ukwuachu v. The State of Texas[3], stated the difference between emojis and emoticon. Emoticons on one hand are a mix of typed keyboard characters used to convey the writer’s tone whereas Emojis on the other hand are often an image meant to convey a writer’s tone. Thus, a smiley face that contains a character that can be found on a computer keyboard, is an emoticon. If it is a cartoon figure, free from the binds of punctuation, numbers, and letters. Then it is an emoji.
The purpose of Emojis’ is not only to present the writer’s emotion but also to help smooth out interpersonal relationships and to convey features such as irony. In recent times, the world is preferring conversation on Mobile Apps such as WhatsApp and Facebook Messenger over a voice call. Despite their ordinary use, emoji do come with their set of complex legal questions attached to them. The legal issues concerning emojis have made them vulnerable to prohibitions on its unrestricted usage.
Categorization
Various companies have their own set of emoji, however no one owns the Intellectual Property Right over the word emoji itself. Emojis can be categorized into two parts:
- Unicode Emoji; and
- Proprietary Emojis.
Unicode Consortium has carried out the standardization of emojis. The Unicode has assigned a short description accompanied by a unique number and a black-and-white shape outline to nearly 2,000 emojis. The Unicode standards enable the emojis to be recognized across several platforms. For a sender to send an emoji symbol that recipients on other platforms can recognize, both the sender and recipient’s platforms are required to adopt a Unicode-defined emoji.[4]
On the other hand, Platforms also implement emojis that employ only on their platforms i.e the platforms implement emojis which are functional only on such respective platforms and are known as “proprietary emojis” or stickers. For example, the twitter hashtag triggered emojis being recognized as a separate band. Proprietary emojis do have similar designs when compared to Unicode-defined emojis however the Unicode-defined numerical value for those emojis are not shared often. For example Kim Kardashian has her own celebrity set of emoji called “Kimoji”.[5] Accordingly, when a proprietary emoji is sent outside the platform, it typically appears in the form of a blank square indicating that the recipient platform has not recognize the character.
Considerations
Copyright
Although on the face of it, emojis may appear to be copyrightable because they are a form of graphical image, yet there exist certain hindrance in obtaining copyright for these graphical representations:-
1. Emojis may not constitute a work of authorship as it is difficult to prove creativity in its designing irrespective of the variations which different platforms come up with.
2. Expressions, not ideas are protected under copyright law. As far as emojis are concerned, the grey area of merger doctrine comes into picture. When an idea can be expressed only in a limited number of ways, then in that case copyright protection cannot be granted. For Example a lot of platforms use the color yellow for ‘smiley faces’.
Also, scenes à faire stamps out copyright protection for emojis because of a common conception regarding the expression of a particular emotion. However, some platforms introduce proprietary emojis or branded emojis which are non-similar in nature and significantly different from that of Unicode based emojis. In such cases, copyright protection for their emojis can be obtained.
Trademark
For any mark to be recognized under the Trademark Law, the mark shall be distinguishable, non – descriptive and even not identical or similar to any of the preexisting trademarks. Despair Inc was the first to get the Trademark protection of emojis. Here, they trademarked and protected their emoticon ‘:-(’ in USA. Similarly, The Smiley Co. owns copyright as well as trademark over the ‘classic smiley’ in over 100 countries. A possibility may arise that multiple persons are holding trademark rights in the same emoji for different class of goods. However, communication based platform are least likely to obtain trademark rights in an emoji because they cannot prove the “use in commerce” requirement for Trademark. This is because the emojis are being used descriptively and hence unlikely to receive trademark protection.
On the other hand, producers or marketing firms intending to use emojis for branding their product are likely to satisfy the “use in commerce” requirement and hence trademark protection can be obtained by them. In 2019, Nirvana a clothing brand sued Marc Jacobs, for infringing their trademark. The later had used a similar looking emoji on their clothing line- they had replaced the ‘x’ of the smiley face’s eyes with their initials M and J over each eye respectively. The Court awarded Nirvana protection stating that it could be extended to both copyright and trademark protection due to its distinctive creation and details.[6]
Patent
There are certain technologies that revolve around creation, depiction or translation of emojis which have patents attributed to them.[7] Apple also owns certain patents in the USA related to emoji titled “Portable touch screen device, method, and graphical user interface for using emoji characters”[8]. Moreover, there are similar other examples which portray that emoji itself do not qualify for patents, but the technology around it sure does.
Linga Bhaskar and Ors. Vs. The State and Ors and ‘LOL’
In Linga Bhaskar and Ors. Vs. The State and Ors [9]. A criminal complaint was filed against 46 employees of BSNL Co. for spamming a WhatsApp group with emoji. The Madras High Court assessed the meaning of LOL emoji .The petitioner strongly contended that the emoji expressed their emotions and the intent. The Court concluded that, a lot of smileys have different emojis and in the context of the complaint, the Court held that, ‘An emoji expresses ones feeling about something and it cannot be treated as an overt act on others.’
Conclusion
While regulations for protecting emojis have already developed, it is yet not a global phenomenon. With the growth in technology, soon the companies will start capitalizing on these graphical form of human expressions. Nevertheless, the contemporary business world makes Intellectual Property securitisation a necessary evil. Hence, emojis qualifying as an original work of creativity may be granted Intellectual Property Rights protection so that rightful owners of these picturesque expressions are not denied the benefit arising of their use.
“The views of the authors are personal“
Reference
[1]Oxford Learners Dictionaries, Emoji https://www.oxfordlearnersdictionaries.com/definition/english/emoji
[2] Arielle Pardes, Emoji: The Complete History, WIRED (Jan 02, 2018, 09.23AM) https://www.wired.com/story/guide-emoji/
[3] Ukwuachu v. The State of Texas (2018 WL 2711167)
[4] What is Unicode?, UNICODE, https://unicode.org/standard/WhatIsUnicode.html.
[5]Sally French, Kim Kardashian’s ‘Kimoji’ app already No. 1 on its first day in the App Store, The Margin, Market Watch (Dec. 22, 2015, 03:50 p.m. ET) https://www.marketwatch.com/story/kim-kardashians-kimoji-app-already-no-1-on-its-first-day-in-the-app-store-2015-12-22.
[6]Case No. LA CV18-10743 JAK (SKx) Date November 8, 2019, https://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=3081&context=historical
[7]Worldlogic Corporation v Flesky, 2011, https://docs.justia.com/cases/federal/district-courts/illinois/ilndce/1:2016cv11714/335033/30
[8] Kalyan Banerjee & Mitchell Taylor, The Rise of Emoji, IP Watchdog (March 26, 2016)
[9] Linga Bhaskar and Ors. Vs. The State and Ors, MANU/TN/2474/2018