Emojis and IP Protection
Updated: Aug 6, 2020
'World Emoji Day' is celebrated on July 17 every year since 2014, after Jeremy Burge, an emoji historian and the founder of Emojipedia, declared the day to be a "global celebration of emojis". An interesting question to discuss on this World Emoji Day as an IP Enthusiast would be "Whether an emoji can be a subject matter of Intellectual Property Law?" and "Whether an emoji is protected under the law of copyrights or trademarks?"
Can an Emoji be protected under the law of Copyrights?
Yes. An emoji is considered to be an artistic work and thus given protection under the law of copyrights. Further, a set of emojis can also be protected under the law of copyrights if such set of emojis have sufficient original selection, arrangement and coordination. However, there are quite a few challenges to register an emoji under copyrights. This includes the lack of originality (used from a long period of time) and lack of expression to constitute authorship. Another challenge would be the applicability of merger doctrine, as emojis can be expressed in a very limited ways and the doctrine of 'scènes à faire' would become applicable in instances where certain ideas could be expressed only in a specific manner.
Can emojis be protected as Trademarks?
Yes, emojis can also be protected as a trademark if such an emoji can distinguish one goods and service from another. However, the usage of such emojis in the 'course of business' may not be practically possible and at times usage of an emoji may be descriptive in nature making it unlikely to get protection under the law of trademarks.
What other IP protections can an emoji get?
A Design Patent may be granted for an emoji if it is ornamental and forms the non functional part of any item. Further, a proprietary emoji is owned by any individual who holds publicity rights over such emojis. For example, Kim Kardashian's celebrity emoji is called "Kimoji". Further, bitmojis allow people to create emojis of themselves and can be a subject matter of Intellectual Property.
WIPO Magazine, Emojis and Intellectual Property Law By Eric Goldman, Professor of Law, Santa Clara University School of Law, California, and Gabriella E. Ziccarelli, Technology and IP attorney, Washington, DC, USA