By: Jamie Salazer
The Merriam-Webster dictionary defines an emoji as a “small image, symbol, or icon” that is used “to express the emotional attitude of the writer, convey information succinctly, [or] communicate a message playfully without using words.” Although emojis have been in use since the start of cellphones in the early 1990s, the use of emojis and emoticons have become increasingly popular over the past decade. As the number of emojis have increased, so has their use in society. Unsurprisingly, emojis have also made their way into the United States court system as well.[3 ]In 2019, there were over 100 court cases that referenced the word emoji or emoticon. Emojis have come up in a variety of cases, ranging from family law to intellectual property law, and have affected both individuals and businesses involved in litigation.
Emojis usually appear in the court system in two ways: i) as the subject matter of a lawsuit; and ii) as evidence of people’s intentions or actions. Specifically, emojis may be used as the subject matter in lawsuits regarding copyright and trademark infringement in the future. Courts have already extended some protection to the Nirvana limited liability company’s trademarked and copyrighted smiley face which, although not identical, is similar to an emoji. In 2019, Nirvana sued the fashion brand Marc Jacobs for copyright and trademark infringement when the fashion brand used a similar looking smiley face and placed it on clothing. Marc Jacobs replaced the smiley face’s eyes, which are marked with the letter “X” on Nirvana’s image, with one letter “M” and one letter “J.” In this case, the court held that the smiley face could be afforded both copyright and trademark protection as both faces possess “(i) [t]he slightly asymmetrical circle shape of the face; (ii) the relatively wide placement of the eyes; (iii) the distractive ‘squiggle’ of the mouth; and (iv) the placement and use of a ‘stuck out’ tongue in the same shape on the same side of the mouth.”Consequently, given the smiley face’s minimal details, which is similar to the design of emojis, this could indicate that emojis and emoticons could be afforded similar protections in future litigation.
In addition, courts have also used emojis and emoticons as evidence of an individual’s intention or action in litigation. In a witness intimidation case, the California Appellate Court used a rat emoji as evidence that the witness was intimidated by the plaintiff. The court has also interpreted a father’s use of the thumbs up symbol in a parent’s custody case. However, the court reasoned that because society’s use of emojis is so casual, the father in this case could not have actually meant to give consent to his child being taken to the United States by the child’s mother. Given the courts’ interpretation in both of these cases, courts could interpret a company’s current or former employee’s use of an emoji in an employment law cases in the future.
The above cases demonstrate that emojis and emoticons are certainly important in society and have made their way into the United States court system. Companies should not ignore the use of an emoji. Indeed, companies should be cognizant of their use of emojis on any products created as they could incur potential liability for copyright and trademark infringement. In addition, companies should also not overlook their employees’ use of emojis in their communication as this can be important evidence in employment litigation cases in the future.
Emoji,Merriam-Webster, https://www.merriam-webster.com/dictionary/emoji (last visited Feb. 2, 2020).
See Arielle Pardes, The WIRED Guide to Emoji, Wired(Feb. 2, 2018), https://www.wired.com/story/guide-emoji/; Kevin Wheeler, Latest iOS update expands emoji with gender-neutral options plus more animals, foods, USA Today(Oct. 29, 2019), https://www.usatoday.com/story/tech/2019/10/29/apple-launches-ios-update-398-new-emoji/2495272001/ (noting that Apple just released 398 new emojis on its iOS13.2 update a few months ago).
Eric Goldman, 2019 Emoji Law Year-in-Review,Technology & Marketing Law Blog(Jan. 23, 2020),https://blog.ericgoldman.org/archives/2020/01/2019-emoji-law-year-in-review.htm (finding twice as many emoji cases were found in 2019 than the previous year).
See Nirvana, LLC v. Mark [sic]Jacobs International, LLC, No. LA CV18-10743 JAK (SKx), 2019 U.S. Dist. LEXIS 225708 (C.D. Cal. Nov. 8, 2019), (discussing an emoji as the subject matter of an intellectual property lawsuit);Bardales v. Lamothe, No. 3:18-cv-00600, 2019 U.S. Dist. LEXIS 186273 (M.D. Tenn. Oct. 25, 2019) (interpreting a thumbs up emoji as evidence).
SeeEric Goldman, More Evidence That IP Law Protects Individual Emoji Depictions – Nirvana v. Marc Jacobs, Technology & Marketing Law Blog(Nov. 19, 2019) https://blog.ericgoldman.org/archives/2019/11/more-evidence-that-ip-law-protects-individual-emoji-depictions-nirvana-v-marc-jacobs.htm (predicting that emojis could hold copyright protection if the image is detailed enough and trademark protection unless the adaption has major deviations).
Nirvana, 2019 U.S. Dist. LEXIS 225708, at *31.
See id. (showing a picture of the smiley with similar features found in a smiley face emoji).
See Bardales v. Lamothe, No. 3:18-cv-00600, 2019 U.S. Dist. LEXIS 186273 (M.D. Tenn. Oct. 25, 2019) (interpreting a thumbs up emoji as evidence); People v. Smith, 2019 Cal. App. Unpub. LEXIS 1691 (Cal. App. Ct. March 12, 2019)(interpreting a rat emoji as evidence).
Smith,2019 Cal. App. Unpub. LEXIS 1691.
Eric Goldman, Two Examples of How Courts Interpret Emojis, Technology & Marketing Law Blog(Mar. 17, 2019)https://blog.ericgoldman.org/archives/2019/10/a-thumbs-up-emoji-doesnt-mean-that-dad-disavowed-his-child-bardales-v-lamothe.htm.
Eric Goldman, A Thumbs-Up Emoji Doesn’t Mean That Dad Disavowed His Child-Bardales v. Lamothe, Technology & Marketing Law Blog(Oct. 31, 2019), https://blog.ericgoldman.org/archives/2019/10/a-thumbs-up-emoji-doesnt-mean-that-dad-disavowed-his-child-bardales-v-lamothe.htm.