Emojis are protected by copyrights

The way we communicate over the Internet has changed a lot. Body language and tone of voice are not conveyed in our text messages or e-mails. When we send an emoji, by e-mail, text message or social media, we are not actually sending an image, but an Unicode, which is translated into the meaning of the image.

The most prominent change in our online behavior was the adoption of two hieroglyphic languages: emoticons and emojis, which created alternative ways to convey a special meaning. The emoji is already a part of our language.

Created in the late 90s by Shigetaka Kurita, the emojis were intended for a mobile Internet service exclusive to Japan. In the first iPhone, launched in 2007, Apple included a keyboard with emojis to attract Japanese clients, which soon became known and used by the entire world.

The emojis are a fun and increasingly omnipresent way for people to express themselves, but they can raise legal and potentially complex matters regarding intellectual property.

Emoticon and emoji do not have the same meaning. Many people think that emoji and emoticon are the same thing, but these terms have different concepts.

Emoticon is a term created based on the words emotion and icon. It is a graphic representation to express emotions, thoughts, through the typographic characters of the keyboard (computer, tablet, cell phone etc.). There is no use of image to communicate through an emoticon. It is used with combinations of punctuation signs, such as :) or ;).

Emoji is the result of Japanese expressions e (image) and moji (character), and is an evolution of the emoticons. It is a digital, static or animated image, or an icon used to convey an idea or emotion in digital communication. Images and not texts are used. They are pictograms (pictorial symbols: symbols representing an object or concept through figurative drawings). They represent images such as faces, the weather, vehicles and buildings, food, beverages, animals, plants or icons representing emotions, feelings or activities.

The emojis are subject to a wider range of representations than the emoticons. That is because they can be literally anything, while the emoticons are limited to characters of the keyboard, such as ;) or :D or :o :’( .

An emoji is sometimes worth more than several words. They are used mainly in the digital environment and are part of our daily communications, in social media and messaging apps, as a way to express our emotions. It is a new language in the digital age.

According to British magazine The New Scientist, approximately 3.2 billion people use the Internet, and three quarters of them through smartphones equipped with emojis. In social media, over 90% of the users communicate through emojis, and an average of 6 billion messages are exchanged daily with the presence of these "little faces" [1].

As a result of a global change in the way people communicate digitally, companies are using the emojis to leverage their sales or even to identify a product or service of the corporation. But to what extent is this use legal? There are limits to the use of emojis and we will touch upon this subject a little below. Certain care must be taken while using the emojis as a tagline in advertising campaigns.

The fact that everyone uses the emojis does not mean that there are no rules to be followed. The emojis are protected by copyrights, as the Copyright Law (Law No. 9,609/1998), in its article 7, item X, sets forth that "protected intellectual work comprises creations of the spirit, expressed through any means or established on any support, either tangible or intangible, now known or invented in the future, such as: illustrations, geographical charts and other works of the same kind".

In order to be protected by copyright, the work does not need to be registered, but it is advisable, for purposes of evidencing authorship and precedence. The creator of the emoji has rights over it since it was put forth in a tangible and physical support, even digital, and the author’s rights last for 70 years, from January 1 of the year subsequent to the author’s death.

In addition to the copyright protection, the emojis can also be used and registered as brands with logo, if they refer to products or services in the market. In this case, they shall be copyright protected and safeguarded by the Industrial Property Law (Law No. 9,279/96).

This trademark registration is valid for an indeterminate period, provided that the ten-year extensions are filed with the Brazilian Industrial Property Institute (INPI). With the registration of the emoji as a trademark with the INPI, the holder can prevent third parties from using emoji (visual configuration of lines, colors and images) without his or her authorization.

However, the Industrial Property Law requires that the holder of a trademark to use the trademark five years after its concession, at the risk of having the registration thereof discontinued, if a third party with legitimate interest challenges it and if the use of the emoji is not proved, the registration can be discontinued by the INPI.

To be copyright protected, the emoji must be used as a distinctive sign: it must distinguish a product/service from another one, which is identical or similar, from a different origin, and must be visibly perceptible. However, in Brazil it is not possible to protect "non-traditional" trademarks. Thus, if the emoticon has any movement/capture of movements, it may not be protected as a trademark in our country.

In Brazil, the Emoji Company GMBH registered the "emoji" trademark with the INPI, under several classes of products and services (cosmetics, jewelry, printed materials, clothes, cartoons etc.). However, there are other companies that also hold trademarks formed by the expression emoji, such as: "animoji", "memoji", "pizzaria emoji", "3d cutemoji", "repelentes emoji", to identify computers, restaurants, smartphones, bug repellent, etc.

An issue to be considered is that, upon requesting the protection of an emoji as a trademark, several of them are visually similar and may be difficult to differentiate from others, especially when displayed in small fonts or through different applications, since there is no standard that specifies exactly how they should be displayed.

In some cases, the trademark of an emoji can be considered generic or common. Let us give an example: The INPI analyzed the application for registration of the trademark "emojinho", the logo of which was a smiling face wearing sunglasses, to identify toys. The INPI was of the opinion that this image cannot be registered by one single holder, as a trademark, because it was considered to be a generic, necessary, common, vulgar or simply descriptive sign. No appeal was filed and the application was dismissed.

The INPI’s opinion was that the emojis (and other similar ones) are common, as they have been widely used for several years. The "smiling face" was developed in 1963 by artist Harvey Ball, hired to draw it to cheer up the employees of State Mutual Life Assurance Company a little, in a tribute to the World Smile Day.

In this scenario, it must be stressed that there are two categories of emojis, the Unicode and the proprietary emojis [2]. The Unicode emoji is not a software or a font, but a universal standard of coding of characters, maintained by the Unicode Consortium (a nonprofit organization that coordinates the development and promotion of the Unicode for keyboard characters and, more recently, emojis).

In the case of the proprietary emojis, the platforms can also implement emojis that work only in them. Therefore, when a proprietary emoji is used outside its platform, it usually appears as a symbol. This indicates that the recipient platform did not recognize that character.

The Unicode standards allow the emojis to be recognized between platforms. Any person or company may send a proposal for an emoji character to the Unicode Consortium, which must comply with certain criteria and guidelines set by the consortium. The Unicode offers the codes of the emojis, in black and white, but the color version belongs to the platform or operational system that made it available (the device model may interfere). It is possible to notice how the same emoji appears differently in another cell phone through website Emojipedia.

However, the Unicode does not assign a numeric code to the proprietary emojis. For example, proprietary emojis belonging to third parties, used as corporate emojis or created for a campaign, do not have a Unicode [3].

The emojis are under the same protection as any other visual work. Thus, since they are protected by copyright, they belong to their creator. A film production company recently had to file for a license on the use of the emojis, which was the main subject of the film.

It must be stressed that if a person is not permitted to simply copy an emoji found online, in an app, etc., and do whatever they want with it; the rules of protection of the owners’ intellectual property must be complied with. For example, Apple holds the copyrights to its set of emojis, Samsung holds theirs, Facebook holds theirs, and so on.

These emojis can be used to say or convey an idea, feeling or emotion over the Internet, in chat rooms, e-mails, etc., but to reproduce these emoticons for commercial and/or advertising purposes, it is necessary to obtain a license from their owners.

There are emojis that can be used freely, such as with the Phantom Open Emoji, which provides a set of friendly and open-code emojis. Even in these cases, it is necessary to follow the rules and guidelines and check whether there are any restrictions to such use, the extent of the image license, etc.

Therefore, in order to not get involved in legal disputes, especially when the use of the emojis is for commercial purposes, it is important to check, for example, whether the use violates the intellectual property rights of third parties; the terms of the license; the conditions of use and the fair use cases. The technical information is essential to not commit a violation or have the application for registration denied by the INPI.

[1] https://www.mackenzie.br/noticias/artigo/n/a/i/mackenzie-comemora-o-dia-mundial-do-emoji/

[2] https://www.wipo.int/wipo_magazine/en/2018/03/article_0006.html

[3] https://www.forbes.com/sites/oliverherzfeld/2019/10/24/the-legal-implications-of-emoji/#6eee47846bbd

Flávia Amaral and Renata Soraia Luiz
Chiarottino e Nicoletti