Emojis are lovely, aren’t they? Emoji is like greenery; their usage fills life with delight to conduct the feelings of an individual effectively. The world has shifted more towards digital communication where the Emoji plays a vital role and has become synonymous to word and expression. It puts life in a dead text and gives proper meaning to a sentence. A huge amount of meaning is conveyed through gestures, facial expressions and by the tone of voice, which gets squandered away in written language and particularly as it becomes colloquial. The small icons are used on social media on electronic gadgets to show emotions and help smooth conversation. Emojis are pictorial representations of emotion. We admire how and what we cannot express with words, are hidden in a simple emoji. Today, as we talk about the digital modern world, almost every social media platform provides different types of emojis making the messaging easy and lively. Hardly there is someone who does not chat without using Emoji and an increasingly ubiquitous way for people to express emotions. Emojis not only make the texts look lively they also help growing interpersonal relationships making the receiver feel how the sender feels.
Emojis evolved from Japan in 1999 and was invented by Shigetaka Kurita for mobile phones as a team member of DoCoMo’S IMODE. Initially the hearts and symbols used on Japanese pagers and weather forecasts respectively inspired her and started to design emojis. Emoji is a Japanese word where “E” means picture and “Moji” means character. The first emoji was a 12 by 12 pixels which was highly inspired by the manga art and kanji characters of Japan. On 17 July, The World Emoji day is celebrated.
The word Emoji originally meant, pictogram, which was an acting symbol to convey meaning with physical object usually seen in computer icons. Before Emoji, Emoticons were used to express feelings by using a combination of punctuation marks. Ukwuachu v. The State of Texas, (2018 WL 2711167), defines the difference between emojis and emoticons—emoticons are a mix of typed keyboard characters that are used to represent a stylized face conveying the writer’s tone. Emojis are often an image meant to convey a writer’s tone. So, if you come across a smiley face that contains a character you can find on your computer keyboard, it’s an emoticon. If it is a little cartoon figure that is free from the binds of punctuation, numbers, and letters, it is an emoji.
Nevertheless, many people believe that emojis are the new way to replace the speech which is highly disregarded by Vyvyan Evans in his book, The Emoji Code, where he explains, since emojis communicate nonverbally have facial expressions and body language, they ultimately fill an ineffable void in our written communication as well.
Emojis are categorised under two heads: Unicode and Proprietary Emojis
Unicode Designed Emoji: The Unicode Consortium establishes standards for keyboard characters and, more recently, emojis. Unicode has assigned a singular number, a black-and-white shape outline and a brief description to just about 2,000 emojis. The Unicode standards enable emojis to be recognized across platforms. If both the sender and recipient’s platforms adopt a Unicode-defined emoji, a sender can send an emoji symbol that recipients on other platforms can recognize.
Proprietar y Emojis: Platforms also implement emojis that employ only on their platforms. We call these “proprietary emojis” (popularly known as, “stickers”). Even when proprietary emojis have similar designs to Unicode-defined emojis, they are going to not share the Unicode-defined numerical value for those emojis. Accordingly, when a proprietary emoji is shipped outside the platform, it typically appears as a logo like a blank square indicating that the recipient platform has not recognize the character.
However, some platforms come up with proprietary emojis or branded emojis that are significantly different and of non-similar nature thereupon of Unicode-based emojis. In such cases, applicants are likely to achieve obtaining copyright protection for his or her emojis. Unicode does not adopt emojis covered by third-party property, like trademarked logos or copyrighted designs. However, platforms or individuals can produce proprietary emojis. Samples of “branded emojis” include Twitter hashtag-triggered emojis (such as NFL emoji hashtags for game day) and celebrity emoji sets like Kim Kardashian’s “Kimoji.”
The prior part explained what emojis are and how these emojis are evolved with showcasing the differences between emoji and emoticons as well. Accordingly, this part while holding various advantages of emojis will make us understand how emojis face legal issues quite often. Various companies have their set of Emoji that are protected under Intellectual property. Intellectual property rights are in the hot seat when it comes to the protection of emojis used widely.
Intellectual property rights normally share the characteristics that they are: only granted when the particular intangible asset can be attributed to an individual creator or identifiable group of creators, the creator(s) being presumptively entitled to the right; and enforced by both the civil and criminal law.
Emojis protected under Trademark
For any mark to be recognised under the TM Law, the mark shall be distinguishable, non – descriptive and even not identical or similar to any of the preexisting trademarks.
Trademark protection of emojis was first done by Despair Inc. where they trademarked and protected their emoticon ‘:-(’ or in USA. Similarly, The Smiley Co. owns the trademark and copyright over the classic smiley in over 100 countries.
It is possible that multiple persons may hold 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 “use in commerce” requirement. Since emojis are descriptive and are highly similar with other emojis are unlikely to receive trademark protection. Whereas marketing firms intending to use emojis for branding their product, the “use in commerce” requirement is likely to be fulfilled and hence trademark protection can be obtained. At the same time, emojis can be highly recognized and fall under generic category when consumers interpret emojis as their generic meaning. Emojis become protectable trademarks only when they distinguish goods or services in the marketplace.
Accordingly, multiple parties can have trademark rights in the same emoji design, just like there are many overlapping trademark owners for generic terms like “apple,” “national,” “sun,” and “united.” But since, the trademark do have slightest scope of protecting emojis, there might be increasing amount of trademark disputes over identical and confusingly similar emojis.
Emojis protected under Copyright
Emojis are designed, created and are categorised as original artistic works of an author were the idea of the author is expressed in a form of emoji. To have a copyright one should have two things: the original work of authorship that is fixed and tangible medium. No Copyright protection for short phrases is registered. They may protect individual emoji, emoji sets and House styles.
Individual emojis, whether proprietary or platformimplemented Unicodedefined, are presumptively copyrightable as graphical images. Nevertheless, most individual emojis won’t receive copyright protection for a minimum of three reasons:
First, the simplicity of the emoji which do not express enough to constitute a piece of authorship and venerable designs that are not unique.
Second, emojis are subject to the merger doctrine, which eliminates copyright protection when a thought is often expressed only during a limited number of the way and scènes à faire, which eliminates copyright protection for details that, in context, are common or expected. Emojis seek to speak their ideas as universally as possible. Furthermore, emojis have developed some conventions, like depicting face emojis in bright yellow, which are now likely scènes à faire. This welcomes the concept of merger doctrine i.e. when an idea can only be expressed in a limited manner; the emojis are in a dire strait to be protected under copyrights.
Third, though Unicode’s IP policy isn’t 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 instance , Apple’s water pistol depiction of the pistol emoji, vary so significantly from Unicode’s definition that they’re not derivative works. For those emojis that qualify as derivative works, the platforms can only claim copyright for his or her incremental changes to the Unicode outline, which might be so inconsequential that they are doing not qualify for separate copyright protection.
This means that Emoji’s are almost like fonts and typefaces that are copyrighted and licensed by the main tech companies who offer the use of their emojis. After considering the usage and protection of emojis in trademarks and copyrights, generally it is frequently asked whether an emoji is patented or protected under designs. Apple, for instance, must buy, license, or create the fonts that are used on their platforms, which incorporates their emoji’s. Therefore, Apple’s version of an emoji cannot be used without getting permission from Apple’s legal department.
This does not mean, Apple has been granted protection under Patents for the emojis developed.
The Apple patent claims a User Interface allowing faster and more efficient communication. Meemo, a licensing, marketing and distribution company, was granted a patent, titled “Word recognition and ideograph or in-app advertising system” (US 9152979). Hence, firms are not likely to get patents for the emojis per se. However, applications based on emojis i.e., applications facilitating efficient use of emojis may be patented subject to fulfilment of patentability criteria. Simply, if an entrepreneur or business owner wants to use an emoji as a part of their company’s logo, marketing campaigns, or if they seek to breed the emoji on a T-shirt, a cup, or the other product, they best get the owner’s permission which is always in the case of any IP protected.
Indian Court deciding on ‘LOL’
A criminal complaint was filed against 46 employees of BSNL Co. for spamming a WhatsApp group with emoji. The complainant then filed a criminal complaint, listing out offences under the Information Technology Act, 2000, the Tamil Nadu Prohibition of Harassment of Women Act, 2002 and the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015. The Court, found the complaint filed to be devoid of merit and therefore quashed, but the judge suggested an apology was in order.
However, the Court also assessed the meaning of LOL emoji , were 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, ‘everyone has a right to express their feelings and share their idea.’
Conclusion
Emojis are highly needed in communication to make the written text understand more effectively. The usage of Emoji and emoticons is beneficial to strengthen the message’s meaning, as it is easily understood. Lamentably, the Law seems destined to thwart Emoji’s communicative potential. As the passage of time, the Emoji has increased in complexity due to Intellectual Property Law, as the regulations for protecting emojis have already developed. For now, emoji may be a fun tool to use, but their development and continued use should be watched closely. Protection of emojis has already started at a rapid scale in countries such as USA, India is still in the development stage and hardly seen the issue arising from emojis since emojis are still in the emerging way in communication.