Emojis and intellectual property law

• Author: Eric Goldman - Gabriella E. Ziccarelli
• Position: Professor of Law, Santa Clara University School of Law, California - Technology and IP attorney, Washington, DC, USA

What are emojis?

Emojis are small icons that people include in electronic communications to express an idea or an emotion. 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. Emojis were preceded by emoticons – icons comprised of keyboard characters such as the “smiley,” i.e., the keyboard characters :-). 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 nearly 2,000 emojis. 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 “blob”-shaped outlines (instead of the more typical circular shapes) for emojis depicting faces (what we call “face emojis”). Other platforms implement Unicode-defined emojis in strange or quirky ways, such as Apple’s depiction of the Unicode-defined pistol emoji as a neon green water gun. 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. 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...