-Martha Engel, Attorney
Emojis – those cute images you may find in a keyboard on your Android or iPhone device – have changed the way many people communicate thoughts, ideas, feelings and concepts. They can add a certain level of pizzazz to an otherwise ordinary text message, Facebook post, or tweet. And, if I may borrow a line from a more famous Martha, they certainly are “a good thing.” For Apple/Macintosh fans, I always was fond of the Zapf Wingbats font – so you might call me an early adopter of this phenomenon.
Emojis have been accepted as part of the Unicode – the computing standard for text. But each platform has a different expression of that Unicode.
So what about when emojis, or even glyphs, are used as part of an advertisement?
We like to reference billboards in our posts here, so take for example this use:
First of all, what is that?
A Super Bowl 50 reference?
Death to Poopy Face L (did I miss the others? and an ode to Death to Smoochy, one of my favorite Robin Williams movies)
Ohhh Dead Pool. Like DUH. (Insert sarcastic emoji). And there is a pool, or at least a guy swimming in a pool, emoji.
Adweek last week called this billboard “so stupid it’s genius.”
We have written before on the use of emoticons and rights associated with it, but this was one of the first examples that I’ve using emojis as part of commercial speech. So who owns the “skull” and “poo” emoji?
Well, like most legal questions, the answer is: it depends. Because emojis are part of the Unicode, their expression is dependent upon the platform in which the viewer sees the emoji. An emoji viewed as part of an iMessage is different than one on an Android device or one in a tweet or one on Facebook or in your Google chat. Because of that, it’s important to consider potential copyright issues before using this in an advertisement. Assuming this was not a permissive use, the Dead Pool example shown may not qualify as a fair use of the skull or poo emojis. Fair use is a subjective test that considers:
- the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- the effect of the use upon the potential market for or value of the copyrighted work.
It’s clearly a commercial use and may be considered to take the whole of the copyrighted work, but whether it’s effect of the use upon the potential market for or value of the copyrighted work (to the extent it is one) remains to be determined.
Is life in 140 characters or less moving us into a glyphful culture? Bachelor Farmer recently launched a new cafe with no name but cleverly and brilliantly branded with a unique logo from iconography (designed by our good friends at Capsule), a logo that has even spurned a hashtag.
Maybe once again Minneapolis’ prince, The Artist Formerly Known As Glyph, who’s playing sold out shows at Paisley Park tonight, was well ahead of the times. Sort of surprisingly, with the benefit of 15+ years, there’s an article about how to write his glyph in Unicode.