Emojis and Intellectual Property Law

By Eric Goldman* and Gabriella E. Ziccarelli**

Everyone loves emojis, and why not? They are a fun and an increasingly ubiquitous way for
people to express themselves. But despite their superficial frivolity, emojis can raise potentially
complex and serious legal issues, including novel and complicated questions about intellectual
property (IP). This article surveys how United States IP law protects emojis, and why such
protection may be problematic.

What are emojis?

Emojis are small icons that people include in electronic communications to express an idea or an
emotion.1 Emojis play a variety of communicative roles: they can function as a word substitute, a
word complement (like the emphasis provided by an exclamation mark), an emotional signal,
and more. Although most emojis are static images, they can be animated.2 Emojis were preceded
by emoticons – icons comprised of keyboard characters such as the “smiley,” i.e., the keyboard
characters :-).3 Emojis are subject to a wider range of depictions than emoticons because they can
be literally anything, while emoticons are limited to keyboard characters.

Emojis can be divided into two categories: Unicode-defined emojis and proprietary emojis.

Unicode-defined emojis. The Unicode Consortium establishes standards for keyboard characters
and, more recently, emojis. Unicode has assigned a unique number, a black-and-white shape
outline and a short description to over 2,000 emojis.4 The Unicode standards enable emojis to be
recognized across platforms. If both the sender’s and recipient’s platforms adopt a Unicode-
defined emoji, a sender can send an emoji symbol that recipients on other platforms can
recognize.

Despite the Unicode’s veneer of standardization, the emojis seen by users are not truly
standardized because each platform implements Unicode-defined emojis differently. For
example, some platforms adopt “house styles,” such as Google’s historical use of “blob”-shaped

*
Professor of Law, Santa Clara University School of Law, California. http://www.ericgoldman.org.
[email protected]. A version of this article was initially published in WIPO Magazine, June 2018, pp. 32-36,
http://www.wipo.int/wipo_magazine/en/2018/03/article_0006.html. This article is based on Eric Goldman, Emojis
and the Law, 93 WASH. L. REV. 1227 (2018), available at https://ssrn.com/abstract=3133412.
**
Counsel, WeWork, New York. https://www.ipwithgz.com/.
1
The Oxford English Dictionary defines an emoji as a “small digital image or icon used to express an idea, emotion,
etc., in electronic communications.” Emoji, OXFORD ENGLISH DICTIONARY ONLINE (June 2018),
http://www.oed.com/view/Entry/389343.
2
For example, Apple’s animoji feature (https://support.apple.com/en-us/HT208190) and Samsung’s AR emoji
feature (https://www.samsung.com/us/smartphones/galaxy-s9/augmented-reality/).
3
Merriam-Webster Dictionary defines emoticons as “a group of keyboard characters (such as :-)) that typically
represents a facial expression or suggests an attitude or emotion and that is used especially in computerized
communications (such as e-mail).” Emoticon, MERRIAM-WEBSTER DICTIONARY,
https://www.merriamwebster.com/dictionary/emoticon.
4
Emoji Counts, v11.0, UNICODE, https://www.unicode.org/emoji/charts-11.0/emoji-counts.html.

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outlines (instead of the more typical circular shapes)5 for emojis depicting faces (what we call
“face emojis”). Other platforms implement Unicode-defined emojis in strange or quirky ways,
such as Apple’s historically idiosyncratic depiction of the Unicode-defined pistol emoji as a neon
green water gun.6 And even where platforms try to adhere to Unicode’s definitions, the way they
each implement emojis still varies. For example, platforms have placed the cheese in the burger
emoji in different locations – some above the burger, others below.7 Thus, virtually all
implementations of the Unicode-defined emojis look different from each other, at least slightly.

Proprietary emojis. Platforms can also implement emojis that work only on their platforms. We
call these “proprietary emojis” (other names include “stickers”). Even when proprietary emojis
have similar designs to Unicode-defined emojis, they will not share the Unicode-defined
numerical value for those emojis. Accordingly, when a proprietary emoji is sent outside the
platform, it typically appears as a symbol such as a blank square indicating that the recipient
platform did not recognize the character.

Unicode does not adopt emojis covered by third-party intellectual property, such as trademarked
logos.8 However, these may be produced by platforms or individuals as proprietary emojis.
Examples of “branded emojis” include Twitter hashtag-triggered emojis (such as NFL emoji
hashtags for game day)9 and celebrity emoji sets like Kim Kardashian’s “Kimoji.”10

Copyright considerations

Copyright may protect individual emojis, emoji sets and “house styles.”

Individual emojis. Individual emojis, whether proprietary or platform-implemented Unicode-

defined, are presumptively copyrightable as graphical images. Nevertheless, most individual
emojis will not receive copyright protection for at least three reasons.

First, some emojis are so simple that they do not have enough expression to constitute a work of
authorship. Also, some emoji designs are so venerable that they are not original.

Second, emojis are subject to the merger doctrine, which eliminates copyright protection when
an idea can be expressed only in a limited number of ways,11 and scènes à faire, which eliminates
copyright protection for details that, in context, are common or expected.12 There are only so
many ways to express certain emojis, especially because emojis’ small size makes it hard to
5
Elizabeth Stinton, Say Goodbye to the Blob. Google’s New Emoji Have Arrived, WIRED (Sept. 1, 2017),
https://www.wired.com/story/google-emoji-redesign/.
6
Margaret Rhodes, Apple’s New Squirt Gun Emoji Hides a Big Political Statement, WIRED (Aug. 4, 2016),
https://www.wired.com/2016/08/apples-new-squirt-gun-emoji-hides-bigpolitical-statement/.
7
See Thomas Baekdal (@baekdal), TWITTER (Oct. 28, 2017, 1:29 PM),
https://twitter.com/baekdal/status/924312294439444480.
8
Submitting Emoji Proposals, UNICODE (Oct. 24, 2018), https://unicode.org/emoji/proposals.html#selection_factors.
9
Eric Farkas, Best Practices For Supercharging Campaigns With Branded Emojis, TWITTER, Sept. 12, 2016,
https://marketing.twitter.com/na/en/insights/best-practices-for-supercharging-campaigns-with-branded-emojis.html,
10
The Making of My Kimoji, https://www.kimkardashianwest.com/behind-the-scenes/523-kim-kardashian-making-
my-kimojis/.
11
COMPENDIUM OF U.S. COPYRIGHT OFFICE PRACTICES § 313.3(B) (3rd ed. 2017).
12
Id. § 313.4(I).

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depict many details. Also, emojis seek to communicate their ideas as universally as possible. To
do so, the details of many emojis invoke standard cultural references associated with an emoji’s
meaning, raising the odds that the details will be scènes à faire. Furthermore, emojis have
developed some conventions, such as depicting face emojis in bright yellow,13 which are now
likely scènes à faire.

Third, though Unicode’s IP policy is not crystal clear, Unicode likely either disclaims ownership
or freely grants unrestricted usage of its emoji definitions. Platform-specific implementations of
Unicode-defined emojis are based on the Unicode outlines, so most implementations should be
derivative works of Unicode’s definitions. However, some platform implementations, for
example, Apple’s water gun depiction of the pistol emoji, vary so significantly from Unicode’s
definition that they are not derivative works. For those emojis that qualify as derivative works,
the platforms can only claim copyright for their incremental changes to the Unicode outline,
which might be so inconsequential that they do not qualify for separate copyright protection.

In contrast, some proprietary emojis reflect significant creative judgments, in which case they
will be better positioned to obtain copyright protection. Branded emojis may also be
copyrightable when the source image is itself protected by copyright.

Even if an individual emoji qualifies for copyright protection, its scope of protection may be
quite narrow. For example, many courts in the United States will apply the fair use defense
broadly to authorize non-identical emoji implementations, and even identical depictions could
qualify as fair use. Despite the graphical depictions of emojis, courts might feel like copyright
law should not reach so deeply into how humans communicate.

We believe the fact that copyright might protect individual emojis has spurred platforms to create
their own version of the same emojis. Does the world really need hundreds of slightly different
emoji implementations of the smiley? No, but copyright law may motivate platforms to
proliferate variations nonetheless.

Emoji sets. Emoji sets are collections of individual emojis. The sets may qualify for compilation
copyrights if they have sufficiently original selection, arrangement and coordination.

House styles. House styles represent standard design choices implemented across an emoji set,
such as the Google blob shape or a uniform non-yellow color for face emojis. A house style
could provide the basis of compilation copyrights in emoji sets, and applying the style to
individual emojis might help make those emojis copyrightable (or qualify as a derivative work, if
they are a variation of the Unicode standard). House styles also could be part of a platform’s
trade dress.

13
Lucia Peters, Why Are Emoji Yellow? An Exploration of Default Options and Arbitrary Color Choices, BUSTLE
(Apr. 14, 2015), https://www.bustle.com/articles/76283-why-are-emoji-yellow-anexploration-of-default-options-
and-arbitrary-color-choices.

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 Trademark considerations

Regardless of whether emojis qualify for copyright protection, as outlined above, and when they
distinguish goods and services in the marketplace, they can be protected as trademarks. In such
instances, multiple parties could have coexisting trademark rights in the same emoji symbols for
different classes of goods. We believe that hundreds of emojis, or emoji-like symbols, have been
registered as trademarks.14

However, the “use in commerce” requirement for trademark protection may prevent trademark
protection for many emojis. For example, platforms typically do not make a “use in commerce”
by providing free emoji sets that users can incorporate into messages. Also, where an emoji is
used for its dictionary meaning (e.g., Bob’s Car seeks a trademark registration for Bob’s + a car
emoji), the emoji is being used descriptively and is unlikely to qualify for trademark protection.

The possibility of trademark protection for standard and widely used emojis raises potential
troubles for platforms. To reduce their trademark infringement exposure, platforms may
deliberately implement emojis so that they are not substantially similar to protected trademarks –
even if the platforms are not commercializing the emojis and merely providing emoji sets to their
users. This effort to avoid possible trademark complications exacerbates copyright’s emoji
proliferation problem.

Other IP considerations

Design patents. Emojis may be covered by design patents (industrial design rights) when they
are an ornamental, nonfunctional design element of an item. For example, US patent D793,512
depicts a winky emoji on a water flotation device.15 However, platforms probably cannot obtain
design patents for using emojis online because they serve the function of facilitating
communication among users.

Utility patents. Emoji- and emoticon-related technologies are potentially patentable, and we are
aware of at least four lawsuits involving such technologies.16 These include, for example,
WordLogic v Flesky,17 which involves a patent that predicts words as mobile app users type and
whether predicting emoticons would violate the patent.

Publicity rights. Proprietary emojis can depict individual faces and other attributes uniquely
associated with a single person. For example, bitmojis allow people to create emojis of

14
Eric Goldman, Trademark Registrations for Emojis, TECH. & MKTG. L. BLOG (June 12, 2017),
http://blog.ericgoldman.org/archives/2017/06/trademark-registrations-for-emojis.htm.
15
Other examples include Portion of a Display Panel with Smiley-face Icon, U.S. Patent No. D703,224 S; Portion of
a Display Panel with an Ambiguous Facial Expression Icon, U.S. Patent No. D703,683 S; Display Screen with Icon,
U.S. Patent No. D682,882 S (depicting four face emojis with the caption “frenemies”); Display Screen with an Icon,
U.S. Patent No. D645,880 S.
16
Intellect Wireless, Inc. v. HTC Corp., 910 F. Supp. 2d 1056 (N.D. Ill. 2012), aff’d 732 F.3d 1339 (Fed. Cir. 2013);
Mobile Telecommunications Technologies, LLC v. Sprint Nextel Corp., 2014 WL 10726788 (E.D. Tex. May 2,
2014); Mobile Telecommunications Technologies, LLC v. Blackberry Corp., 2015 WL 12698062 (N.D. Tex. July
15, 2015); WordLogic Corp. v. Flesky, Inc., 2017 WL 5152369 (N.D. Ill. Nov. 7, 2017).
17
WordLogic Corp. v. Flesky, Inc., 2017 WL 5152369 (N.D. Ill. Nov. 7, 2017).

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themselves.18 Also, some celebrities have created emoji sets containing emojis that look like
them.19 Any emoji depictions of individuals may require consent from the depicted person. Such
consent is certainly required if the emoji is to be used as a brand on marketplace goods or
services.

Owning emojis

Because emojis are eligible for IP protection, we expect that IP protection and assertions for
emojis will increase as their popularity grows. IP protection for emojis, however, is a mixed
blessing. While some emoji owners may profit from exploiting their IP, the rest of us may find it
harder to communicate effectively with each other. Acquiring IP rights over emojis implicitly
encourages unnecessary and undesirable variations of emoji depictions. It is as if each publisher
intentionally spelled common words differently just to avoid any risk of infringement claims.
Insofar as the linguistic role of emojis is analogous to words in communicative sentences, IP for
emojis imposes a substantial tax on standard human communication. For these reasons, the
institutions that regulate IP – courts, government registration offices and, as necessary,
legislatures – need to be circumspect in determining the scope of IP protection for emojis.

18
Alison Kruger, The Inside Story of Bitmojis: Why We Love Them, How They Make Money, Why They Are Here to
Stay, FORBES (Mar. 24, 2016), https://www.forbes.com/sites/alysonkrueger/2016/03/24/the-deeper-meaning-behind-
bitmojis-whywe-all-love-them-so-much/.
19
Erika Harwood, 10 Unlikely Celebrities Who Have Their Own Emojis, VANITY FAIR, Oct. 28, 2016,
https://www.vanityfair.com/style/2016/10/unlikely-celebrity-emojis.

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