Appleyard Lees

Emoji – as easy as 🅰️🐝©️

The word “emoji” is a transliteration of the Japanese word “絵文字” (pronounced EH-MOH-JEE”), which literally means “picture letters”. The little yellow faces in our daily text messages have evolved from the original emoticons which combined punctuation and everyday letters to form facial expressions, such as those below:

Description Emoticon Emoji Translation
slightly smiling face :-)  smile good mood
winking face ;-)  wink mischievous or humorous
face with open mouth :‑O  shocked surprise, shock

First used in the late 1990s, emoji are described by their creator, Shigetaka Kurita, as “adding subtle emotional emphasis to a sentence in text”. They can now be used as search terms, hashtags or in marketing communications generally in the same way as traditional words and letters.

policethumb downor thumb up?

Businesses which use emoji however need to be sure they stay on the right side of the law. So, where exactly do intellectual property rights fit into the picture?

Using emoji

In simple terms, emoji function like a font. Computers communicate across different hardware platforms by adopting the Unicode Standard. This universal code ensures that a message sent from one device is identical to that received on another. However, the visual appearance of the message will vary depending on the operating software being used to display the message on each device.

For example, below is a text message conversation between two friends, one using an Apple phone and the other using a Samsung phone. Note that the content is identical but the images correspond to the emoji set on each user’s device.

Apple

Samsung

 apple  samsung

What IP rights are there in emoji?

Each individual emoji is potentially protected by several intellectual property rights. In the United Kingdom, copyright subsists in emoji as original artistic works by virtue of section 1(1)(a) of the Copyright, Designs and Patents Act 1988. This entitles the owner to prevent the unauthorised copying of the whole or a substantial part of the work for 70 years. In the European Union, new emoji are also protected by unregistered design right for the first three years after disclosure pursuant to Article 11 of the Community Design Regulation, (EC) No. 6/2002. Emoji may also be registered as Community designs which can last for up to 25 years. Each image could of course be protected by trade mark law, though obviously not for fonts, messaging services or other descriptive items.

ip

Can I use emoji freely to promote my own business?

The use of emoji therefore brings a risk of infringement unless the owner has authorised the use of the intellectual property rights.

Fortunately, by default, the operating software on most devices permits the use of installed emoji, as this is obviously necessary in order to function. Likewise, the terms and conditions of social media permit the use of emoji which are available within the platform. This means you can promote your own business using emoji provided you do so within the website where it is created.

The position is more tricky is when emoji are used outside the proprietary software ecosystem. You cannot, for example, use Apple’s or Samsung’s emoji to promote your own goods or services without infringing the owners’ rights. There are however freely available emoji sets, such as Emoji One, which the owners allow to be used commercially under the Creative Commons licensing scheme.

 Comment

 Emoji are protected by copyright, design right and trade mark law. If you plan on using emoji within your business:

  • consider whether you have permission to use the emoji in the specific format
  • think about using emoji available under a Creative Commons licence, such as EmojiOne
  • design your own original emoji

And always:

 conduct clearance searches to check whether the emoji you wish to use is protected in your industry

 Emoji provided free by EmojiOne

smile

Return to Articles