Great minds moji alike?

Apple emoji keyboard

Last September I wrote the following in a letter to a client that asked whether it could use emojis from Apple’s character set in certain marketing materials:

The Internet is full of opinions and statements concerning the copyright-protected nature of the Apple emoji set, but no one has evidently explored seriously the issue of whether, notwithstanding Apple’s assertion of protectability as well as its copyright registrations of these symbols and devices, they are really subject to any copyright restrictions.

Eric Goldman

Well, now it’s explored, and by Eric Goldman; and who better? Here’s a link to the abstract of his upcoming article, “Surveying the Law of Emojis.”

It’s awesome.  But I have to admit: I have known about this article for months, and have been afraid to look at it.  And here’s why.

I’m not scared of being the first person to consider, analyze, reach or opine on something, of course; nor the 1,000th.  But if I am going to be the 1,000th, then I guess I do find it a little unnerving not to know what anyone else has said before!  And I doubt I’m even in the second thousand here.  But, surprisingly, until Eric’s recent series of posts and tweets on this topic, there did not seem to be any online evidence of anyone having addressed the matter rigorously.

Not knowing that Eric was in the process of rendering my original thinking obsolete, then, I plowed ahead. Obviously I can’t share my advice, even without naming the client.  But I can adapt my analysis, which focused, more than Eric’s article does, on what right Apple claims for itself, and I will.

Paragraph (F) of the Apple Pages license as of September 2016 states as follows:

[Y]ou may not use, extract or distribute, commercially or otherwise, on a standalone basis, any photographs, images, graphics, clipart, artwork or similar assets (“Digital Materials”) contained within, or provided as a part of, the Apple Software or Services (including but not limited to any Digital Materials contained within templates, themes or user guides and tutorials), or otherwise use the Digital Materials outside the context of its intended use as part of the Apple Software.

Notice that no reference at all is made to emojis as such.  (Obviously emoticons would not be an issue. You know the difference, don’t you? 😉 ) Apple’s emojis seem to be, if anything, “Digital Material,” but as you see, the Apple license does not restrict use other than “on a standalone basis.” Rather, it permits the use in “the context of its intended use as part of the Apple Software.”

Any use, therefore, that is “as part of the Apple Software,” not “standalone” – i.e., not separate from the ordinary use of the software. In other words — seems to be a use of the  emojis exactly for the purpose intended: To create graphic content with Apple software.  And graphic content, of course, is meant to be published, is it not?

To the extent any argument were made by Apple that the above language actually prohibits a given “non-standalone” use as it described it, such a restriction does not seem clear from the language of the standard agreement.  Plus, because Apple drafted this license and it was not subject to negotiation, ambiguity would likely be interpreted against Apple.

There was more to the analysis I shared with my client, but I can say that I did say this in sum:  (a) the “standard” Apple versions of “standard” emojis are of questionable protectability as a matter of copyright law, at least on originality grounds; (b) to the extent Apple would argue that its license restricts use of the emojis in published matter, such a limitation is arguably vague and unenforceable; and (c) going back to my analysis above, the license is in any event more reasonably be read as in fact permitting such use.

Why doesn’t Apple just say so?

It doesn’t say so.

So… what does Professor Goldman say?

Well, as I mentioned, he says quite a lot. Here’s his table of contents:

I. Understanding Emoticons and Emojis ……………………………………………..

A. Emoticons …………………………………………………………………………
B. Emojis ……………………………………………………………………………..
C. Other Online Pictographs: GIFs and Memes ………………………..

II. Interpreting Emojis’ Meaning ……………………………………………………….

A. Interpreting Emojis …………………………………………………………..

B. Emoji-Related Interpretive Challenges ……………………………….

1. Small Size ……………………………………………………………
2. Novelty ……………………………………………………………….
3. No Dictionary ………………………………………………………
4. Unsettled Grammar Rules ……………………………………..
5. Dialects ……………………………………………………………….
6. Conveying Emotions …………………………………………….
7. Intra-Platform Version Incompatibilities …………………
8. Cross-Platform Depiction Diversity ………………………..
9. Cross-Platform Omissions ……………………………………..

C. How Will the Law Handle Emoji Misunderstandings? …………..

D. What Should We Do About Emoji Misunderstandings? ………..

III. Emoji Ownership …………………………………………………………………………

A. Copyright in Emojis …………………………………………………………
B. Trademark in Emojis ………………………………………………………..
C. Problems Caused by Emoji Ownership ……………………………….

IV. Emojis and the Judicial System ……………………………………………………..

A. Emojis in Court Opinions ………………………………………………….
B. Will Opinions Display Emojis? ………………………………………….
C. Searchability ……………………………………………………………………
D. Presentation of Emojis as Evidence ……………………………………

Great stuff!  Eric goes far beyond the question I was considering.  But on copyright, he says this, in sum, after providing an exquisite education, over the course of many pages, on the manifold complexities of the matter:

Because platforms base their implementations on a Unicode outline, a platform’s potential copyright ownership is limited to its idiosyncratic modifications or additions to the outline. In some cases, these changes won’t be enough to qualify for a copyright that’s separate from the copyright (or lack thereof) of the emoji outline. The Copyright Act’s definition of a “derivative work” is internally inconsistent, but it does expressly require that the changes must, “as a whole, represent an original work of authorship.” Accordingly, minor variations to the emoji outline, such as the addition of a single color and slight changes to a few details, may be insufficient changes to make the platform’s implementation its own work of authorship. Doctrines like merger and scènes à faire could further limit the scope of copyright in platform’s implementation of an emoji and, in extreme cases, render it entirely uncopyrightable. In contrast, platform implementations that significantly deviate from the Unicode outline have a greater likelihood of qualifying as a copyrightable derivative work owned by the platform (though at the cost of standardization and possible user understandability.

I think I got the “copyrightability” part right, and Eric does not go into interpretation of specific licenses, much less as applied to a given posited use.  Nor does he address the practical questions that lawyers answer for clients:  Not only what is the exposure, but what is the likelihood of being exposed (if you will), and if indeed a challenge is encountered, what is the likely range of outcomes and their respective likely impacts?  So my job is still secure, if it ever was.

All the same, I was right to be terrified, based on the level of complexity that the above summary obscures.  Notwithstanding that complexity, the discussion of copyright in emojis is eminently readable, and you should read it.

Read the whole article already!  Eric also deals, of course, with emojis and trademarks, but far more interesting, with issues arising from interpretation of emojis in communications with legal implications and the complications that arise from cross-platform variations.  Example:

You think that’s something?  I’ll show you something!:

Oh, brave new world!  Eric Goldman has a fun job.  And once again he’s helping me do mine. 🙂

 

Ron Coleman

I write this blog.

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