“The English Language cannot fully capture the depth and complexity of my thoughts so I’m incorporating emoji into my speech to better express myself, Winky-face”
Gina Lenetti, Brooklyn Nine-Nine
Episode 22, Season 1, 3:45.
With the rapid development of technology and the shift to digital communications, emojis have become an important part of how humans interact with each other. In fact they have brought a proven semantic shift in the human language and ways to perceive the tone of a message; so much so that it is no more just a buzzword, but is categorized as a definitive English word under almost all dictionaries. Not to mention that emojis have a dictionary of their own now, describing the meaning behind each image. In today’s age each social-network interaction, messaging service etc. uses various similar representations to the likes of emojis, such as emoticons, stickers, or gifs; this article, however, discusses emojis alone.
(plural emoji, emojis)
A small digital image used to express an idea or emotion in emails, on the internet, on social media, etc.
[He responded with a red heart emoji.]
Despite their ordinary usage, emoji do come with their set of complex legal questions attached to them. While various companies have their own set of emoji, no one owns the IP right over the word emoji itself. Emojis can be categorized into two parts: The one under Unicode and Proprietary Emojis.
Unicode: Computers run on numbers, binary combinations of 0 and 1. They store all information by assigning a certain value to it in terms of these numbers. The Unicode Consortium, a non-profit organization, provides for a uniform standard of such assigning, hence no matter what device, platform or language, data can be recognized in the same manner without corruption as opposed to earlier, when the encodings used to conflict with each other. Recently they have similarly assigned such unique numbers to approx. 2000 emoji (an outline shape, in black and white with a short description). When both the users have Unicode standards, they can recognize the same emoji as opposed to a square, or a rectangle with a cross inside it.
Although, despite the outlines provided by Unicode, platforms are free to give them their own unique ways, for e.g.: In the popular burger emoji, Google places the cheese underneath the burger, while Apple places it over the burger. Even twitter offers an open source set of emojis.
Proprietary: A lot of platforms have their own set of emojis that do not work outside the said platform. These are known as “proprietary emojis”. Even if their design is similar to the Unicode outline, they do not share the same numerical assigned values as that of Unicode. For eg: Kim Kardashian has her own celebrity set of emoji called “Kimoji”.
House style: It’s not a type of emoji but a standard design applied to a set of emojis by a particular platform that helps them distinguish their emoji from others. Eg. Deciding to create all emojis in color blue instead of well-known yellow, or how Google prescribes to the “blob” form of creating emoji.
Emojis and Intellectual Property Consideration:
On the face of it, Emoji seem to be subject to copyright consideration. They are graphical designs based on a code. Hence, individual emojis are/can be protected by copyright law. In most countries including India, copyright is granted to the author of the original, artistic expressions. However, there are certain obstacles commonly noted in registering an emoji as copyright.
- Since most emojis are simple variant of the emoticon (which is not protected as intellectual property due to its text-based nature), they are not considered to have enough original expression to constitute authorship.
- Expressions, not ideas are protected under copyright law. Emojis, however, fall in the grey area of the merger doctrine, where both the things are difficult to separate. Emojis are variants of the human expression, hence, there are limited ways to establish their features, separate from the original idea. Such become a norm of reference and almost obligatory part of creating an emoji. E.g. a lot of platforms use the color yellow for ‘smiley faces’.
- Since a lot of platforms just derive their work from the Unicode provided outlines, they are not part of original design, and can only claim authorship over such variant, usually inconsequential in nature. While Unicode in itself being a non-profit organization, grants free usage of its emojis.
However proprietary emojis often have a noteworthy amount of variance and creative indulgence in which case they may have a chance to get copyright protection. However, the exceptions under fair-use doctrine often make their protections weak for individual emoji, an emoji set however would have stronger chance of enforcing their copyright. Often they prescribe to a certain house style to invoke their claim of distinctive and original.
Outside your messaging screen, and over your goods and products, emojis become qualified to be protected by trademark rather than copyright. Trademarks are words or symbols used to create a distinctive feature for consumer recognition in commercial use. Hence, the same emoji could be trademarked multiple times over for different class of goods or services. However, most everyday use emojis for instance, describing the brand or creating a social media message- even for commercial purpose shall not be protected. Eg. X opens a food chain with an accompanying burger emoji would just be descriptive of X’s work.
Another scenario include using already known emojis over products, later to be trademarked. Suppose, Apple creates a distinctive emoji of say a bird. It is a copyright of Apple. If someone now wants to use that bird over their products they would have to take license/permission from apple to replicate the design regardless of the fact that such emoji would now exist on a forum outside the preview of copyright.
In 2019, Nirvana a clothing brand sued Marc Jacobs, for infringing their trademark, when the later used a similar looking emoji on their clothing line. Marc Jacobs 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.
There are certain technologies that revolve around creation, depiction or translation of emojis which have patents attributed to them.  Apple also owns certain patents in the USA related to emoji over their user interface allowing quicker and competent communication. Moreover, there are similar other examples which portray that emoji itself do not qualify for patents, but the technology around it sure does. 
The design law generally provides protection to the aesthetic attribute, which does not provide function, to an item created industrially, or through industrial methods. For eg. in USA a design patent (similar to the design law in India) was granted to a company for a winky-face over a floatation apparatus. However, since the emojis in question here are platform oriented, whose specific function is to cater to ease of communication, it would not qualify for protection under the same.
What could IP protection of emoji lead to?
While much of the regulations for protecting emojis have already developed, it is yet not a global phenomenon. Although with the growth in technology it does not seem far, when companies would start capitalizing on these graphical form of human expressions. While a lot of platforms offer open-source emojis, there are still a lot of growing opportunities to exploit from protecting one’s emoji set. Since emojis have become synonymous to words and expressions in the world of texting, it would be like each platform having its own set of language. It would also restrict the method of communication between users. Hence, whenever such little images are to be regulated, the institutions and creators must ensure that the purpose of introducing them- to increase effective communication between people- must not get quashed in the process.
Meanwhile dear readers, we hope to leave you with a (‘ ; ‘)
 Emoji aand Intellectual Property Law, Eric Goldman and Gabriella E. Ziccarelli, 2018, https://www.wipo.int/wipo_magazine/en/2018/03/article_0006.html.
 Sundar Pichai wins Internet by prioritising Apple vs Google ‘cheese in burger’ emoji issue; Twitterati weigh in, 2017, Indian Express, https://indianexpress.com/article/trending/trending-globally/sundar-pichais-response-to-twitter-user-who-pointed-out-whats-wrong-with-googles-burger-emoji-gets-twitter-buzzing-4911926/.
 Kimoji as the highest grossing app in Apple’s IOS, Sally French, 2015, https://www.marketwatch.com/story/kim-kardashians-kimoji-app-already-no-1-on-its-first-day-in-the-app-store-2015-12-22.
 Nirvana, LLC v. Mark Jacobs International, LLC, No. LA CV18-10743 JAK (SKx), 2019 U.S. Dist. LEXIS 225708 (C.D. Cal. Nov. 8, 2019).
 Worldlogic Corporation v Flesky, Inc 2011, https://docs.justia.com/cases/federal/district-courts/illinois/ilndce/1:2016cv11714/335033/30
 India: Intellectual Property Rights Over Emojis: Transforming Expressions Into Assets, Intepat Team, 2018, https://www.mondaq.com/india/trademark/714970/intellectual-property-rights-over-emojis-transforming-expressions-into-assets.
 Section 2(d), Design Act 2000, No. 16 of 2000.
 US patent D793,512.