Rights on emojis?

Emojis are rather popular these days. Emoji, not to be confused with an emoticon like :-) or :-(, is Japanese for picture (e) and character (moji). These characters, originally from Japan, are used in digital communication and consist of small images ranging from basic yellow emojis that cry from laughing or give a kiss to country flags, high heels and families.

More emojis are being created, apart from the basic emojis from the major, well-known companies like Apple, Samsung, Twitter and Facebook. Take the Minions-emojis from the animated film Despicable Me or the emojis of famous people like Kim Kardashian. Since this month, even emojis of faces from historic Dutch paintings can be used. Marketers are keen to use the trend of emojis in their advertisements. For example, major telco Tele2 and accountant Deloitte are using emojis in their ads.

An interesting question arises with the huge increase in use of emojis in ads. Can one use emojis from other parties, such as Apple or Samsung, in advertising or other commercial purposes, like an emoji t-shirt?

In other words, do intellectual property rights apply to emojis and what kind of rights could that be? One could think of trademarks used to distinguish companies from others, industrial design rights used to protect certain characteristics or design and copyrights that apply to original works. Reading through all kinds of brand and model registration files, I learned that registering an emoji as a brand or model is not a common practice, apart from a model registration by Apple for some old-fashioned looking emojis.

Other question will be whether copyright law could apply to the design of an emoji. A copyright protects so-called original works and automatically applies when an original work is made. Copyrights don’t have to be (and cannot be!) registered to enjoy protection. To verify whether a certain emoji has a copyright, one cannot consult a register with such registrations. How can we find out whether a certain emoji is legally protected through copyrights? To answer this question, one has to verify whether the design of a certain emoji is original and not banal or trivial. In legal terms, this means that an emoji should have its own, distinctive character and has a personal mark of the creator. In general, it is assumed that barrier to create work that could be entitled to copyrights is rather low. However, to verify whether the barrier is that low that it applies for emojis, there has not been any judge in the Netherlands who ruled some sort of decision for this. Yet.

If a certain, original emoji has a copyright, the protection would probably not be too extensive. Kim Kardashian’s emojis will probably enjoy some legal copyright protection (see example).

However, Kim Kardashian cannot prohibit others to design and use emojis of crying girls with brown hair based on her copyrights. Though, she could file against one who uses her exact emoji one on one.

What does this imply for use of emojis in ads? If you would like to use emojis in ads or other commercial purposes, the safest way would be to design your own emojis. But, I hear you thinking, how can the “basic” yellow emoji with sunglasses be significantly different from Apple’s “basic yellow” emoji? The room for individual input is rather limited in the case of basic emojis. This could result in having a tougher job in distinguishing your emoji with sunglasses from the other emojis with sunglasses. Apart from the question whether a certain emoji is original enough to get to the copyright barrier as a result of the limited legal protection of emojis, minor differences can already ensure the fact that one does not infringe an existing, legally-protected emoji.

We could wait if a certain party will ever file a case based on the copyrights on emojis, but you know what they say: better safe than sorry!