As the old saying goes, a few well-chosen emojis paint a thousand words. To celebrate World Emoji Day, and the joy of all things emoji, we’ve compiled a few thoughts on the topic.

• What is an emoji?

We probably all think that we know what an emoji is. But do we really?

Emojis are officially-recognised symbols that are regulated by the ‘Unicode Standard’. Unicode reviews submissions for additions to the standard and issues revised standards regularly. There are currently 1809 recognised emoji and a full list of the current Unicode standard can be found here.

Each emoji is defined by a Unicode standard icon (‘Chart icon’) and description, e.g.

“Smiling face with heart eyes”

And different user interfaces have different manifestations of that emoji, e.g.

Apple

Twitter

Samsung

So far, so fun. However, a pictograph is only truly an ‘emoji’ if it is in the Unicode Standard. So, embedded Graphic symbols that look similar to emoji, but aren’t on the Unicode Standard, are not truly emoji!

To help you discern a true emoji from a non-emoji symbol, here are some useful definitions that I’m sure we’ll all be looking to burn into our memories for possible future pub chat.

Emoji – any manifestation of a pictogram that corresponds to a unicode approved symbol, e.g.

Emoticon – Often used interchangeably with emoji, but is more properly a series of text characters used to make an image, e.g.

¯\_(ツ)_/¯

Sticker – an embedded pictogram that does not correspond to a unicode approved symbol, but that could be used in the same way as an emoji, e.g. McDonalds graphic:

• And what, exactly, is the IP angle?

Well, there are situations in which emoji may be eligible for some forms of IP protection.

Let’s first consider the broad concept of a particular emoji, i.e. the general idea of a 2D graphic consisting of smiling face with heart eyes. Specifically, one that is a recognised Unicode character. Is this eligible for IP protection?

In short, it’s pretty unlikely. If the character is Unicode recognised then the symbol is ‘useful’ enough as a character to be recognised pretty much universally. This means the character is unlikely to be ‘new’ in it general concept. That rules out registered designs. Copyright and unregistered design rights don’t cover concepts on a general level like this. And trade marks are unlikely to have rights in such a broad concept when, by virtue of being a recognised emoji, the concept is widely used. This would be roughly comparable to trying to claim trademark rights in the letter ‘S’ without any specific stylisation!

But what about a specific 2D graphic for an emoji with its various design choices (the precise shape and positioning of the hearts, the curve of the mouth, the colours, and maybe the face shape)? Is this eligible for IP protection?

Copyright – This situation is not completed settled. If you consider emoji a type face, the answer is ‘no’ (type faces are excluded from copyright protection in, for example, the UK and the US). But if the emoji is considered a graphic image, with sufficient creativity. then perhaps yes . It may depend on the exact usage – if used as text it could be considered a non-copyrightable type face, but if used as a graphic it could be considered a copyrightable image.

However, if copyright does subsist, it would require actual copying of the 2D image. Therefore an independently designed emoji using the same concept but a different image would not infringe copyright in the image.

Registered Design – The design owner could register a design right for an emoji. The emoji could be registered as a typeface, a graphic interface, a 2D icon/character… Rights likely to be narrow given the limited design freedom and reasonably dense field of emoji designs. There are in fact some registered designs for emojis, though fewer than one might expect.

Trade Mark – Conceivable but with strong limits. There are some examples of emoji registered as a trade mark and it seems that non-registered rights acquired through use could be possible. However, protection would be very narrow and specific to that particular representation of the emoji.

In summary, it’s unlikely that anyone could claim rights in the broad idea behind an emoji symbol, but for a specific 2D graphic for an emoji the situation opens up a little, and there could be some protection available.

• Brand-associated emoji

In recent years, there has been an emergence of brand-associated emoji fonts that are stylised in accordance with a brand or celebrity image. As an example, in 2015 Kim Kardashian launched her own line of emojis and stickers.

I couldn’t round off this article without giving that a mention, and I think these images speak for themselves. So that brings us full circle. An emoji really does paint a thousand words.

Emma Arbabzadah