Given the ubiquity of emoji, businesses have used them in commercial ad campaigns. Honda has used emoji in creative advertisements, releasing Aprils Fools’ ads in 2016 and again in 2017. Twentieth Century Fox created some buzz last year when it placed a billboard in Los Angeles advertising a movie release (guess which one) with the following message:
Translation: “Deadpool.” Adweek wrote an article entitled: “Deadpool’s Emoji Billboard Is So Stupid, It’s Genius.”
While emoji provide marketing teams with a new and fun method for communicating with consumers, they can also raise copyright concerns. Phone app and software providers certainly want people to communicate using their respective emoji, but using emoji for commercial purposes may, in some instances, raise the possibility of copyright infringement liability.
The threshold legal question is whether emoji are copyrightable subject matter. There has been no reported copyright infringement cases based on the alleged infringing use of an emoji, so there is little guidance on the issue. In a case from Florida, plaintiff filed a complaint for declaratory judgment after it received a cease and desist letter in which defendant claimed that plaintiff infringed on jewelry emoji copyrights. Gab-Cos Designs, LLC. v. Alison Lou, Case No. 16-cv-20685. The case was voluntarily dismissed before any motion practice.
One major phone manufacturer, at least, seems to believe that emoji are subject to copyright protection, as evidenced by its filing of 676 copyright registrations for emoji characters in 2016. It is not alone, as there also numerous other copyright registrations for emoji.
The bases for conferring copyright protection over an emoji are straightforward: (i) an emoji may be subject to copyright protection as a pictorial depiction or (ii) the underlying code of an emoji may be subject to copyright protection as software code would be.
On the other hand, there is the academic argument that emoji are different because they can be characterized as a language which has developed and continues to develop. For this language to continue to advance, some argue that emoji should be part of the public domain. Indeed, what about the Unicode Emoji, isn’t their existence and effort to create a uniform emoji set evidence that emoji are language? Amongst others, that one registrant of 676 copyright registrations is also a full voting Unicode Consortium member. Currently, Unicode is reviewing proposals for Emoji 5.0, which will bring a new set of emoji characters. But Unicode expressly notes that “[a]ll copyrights . . . associated with the emoji designs appear on this website are the property of their respective owners.”
To avoid the academic discussion altogether, advertisers may look to companies that specifically license emoji. EmojiOne, for example, provides a free license for commercial use with attribution. EmojiOne requires that commercial users provide a link to their website: such as, “Icons provided free by EmojiOne.” For websites, the link must be somewhere on the website, but does not require a link on the specific page. For printed ads, the attribution information must be in small text at the bottom of the ad. If attribution is an issue for an advertiser, EmojiOne offers custom licenses, which requires contacting the company directly.
Of course, marketing teams are (subject to the copyright issues, above) free to create their own emoji, or license the use directly from a copyright-owner.