Copyright protection for Emojis

emojiCopyright 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, and scènes à faire, which eliminates copyright protection for details that, in context, are common or expected.

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.

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.

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.

Author: Eric Goldman, Gabriella E. Ziccarelli
Source: WIPO Magazine

    • September 2020
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