Answer: Maybe. Turns out, emojis are more complicated than one might imagine…
Emojis are “pictographs—images of things such as faces, weather, vehicles and buildings, food and drink, animals and plants—or icons that represent emotions, feelings, or activities.” The word “emoji,” which comes from the Japanese language, essentially means picture characters.
But emojis are more than just a set a various pictographs and icons, they’re a unique language of sorts. Ever notice that the ever-popular “heart eyes” emoji is available on the iPhone, Samsung phones, Facebook, Twitter, and a variety of other communication platforms? The same goes for the “tears of joy” emoji, the “face with sunglasses” emoji, and almost every other emoji. Why is that? Are these platforms copying the original ideas of others?
The pictographs and icons known as “emojis” are based on the Unicode Standard, which is an encoding system that is standardized across platforms, programs, and languages. That’s why we see these same emojis on various platforms. Across all platforms that support Unicode, U+1F600 = the “grinning face” emoji😬, U+1F609 = the “winking” emoji 😉, U+1F60F = the “smirking” emoji 😏, and so on. It’s not a matter of copying, but instead, a technical requirement. As the Unicode Consortium puts it, “while the shape of the character can vary significantly, designers should maintain the same ‘core’ shape, based on the shapes used mostly commonly in industry practice” and “a design that is too different from other vendors’ representations may cause interoperability problems.” So standardization means the emoji designs must follow certain guidelines as far as appearance is concerned.
It’s important to understand that emojis are different from emoticons. They are more than just tiny icons used to express emotion. Due to their standardization, they function a lot like typefaces and fonts, which are generally not protected by copyright. Just as different font styles represent the letter “A” in a variety of different, but similar ways, so too do emojis represent winking, smirking, and smiling in different, yet similar ways—because they have to, that’s how language works. If we can’t recognize the letter “A” as an A, and a smirking emoji as a smirking emoji, the message is lost. At the same time, however, emojis are often visually more complex than fonts, which allows for greater flexibility and originality of expression as compared to fonts. So it’s possible that emojis are afforded at least thin copyright protection, meaning that while Apple can’t stop Facebook from creating a “heart eyes” emoji similar to their own, it may be able to prevent wholesale copying of its emoji designs verbatim. Imagine, for example, that a new cartoon included characters with faces made to look exactly like Apple’s version of various emoji faces. It’s possible that Apple might be afforded thin copyright protection to prevent this kind of reproduction of its work.
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