Apple Sued Over 'Diverse' Emojis Which Is All Idea and No Specific Expression

from the frowny-face dept

The inability of someone to understand the idea/expression dichotomy in copyright law strikes again! For those of you not familiar with this nuance to copyright law, it essentially boils down to creative expression being a valid target for copyright protection, whereas broader ideas are not. In other words, the creator of Batman can absolutely have a copyright on Batman as a character, but cannot copyright a superhero who is basically a rich crazy guy who fights crime in a cape and cowl with a symbol of an animal on his chest. You get it.

Katrina Parrott, who came up with some original emojis of a more diverse nature than previously made, does not get it. She sued Apple late last year, claiming copyright infringement after Apple came out with its own diverse emojis.

As reported by The Washington Post, Katrina Parrott was invited to Cupertino in 2013, to discuss partnering with Apple on an app based on her idea of emojis with different skin tones. From the report:

It was 2013, and the tiny digital drawings — smiley faces and thumbs-up icons sent over text message — depicted people in only one skin tone. Parrott, who is Black, said her oldest daughter came home from college one day and lamented that she couldn't express herself through emoji with skin tones that matched her own.

Embracing the idea, she launched iDiversicons six months later, allowing users to copy and paste emojis with five distinct skin tones into messages and such. However, things quickly turned sour:

According to Parrott, though, her early success turned to heartbreak when Apple and other technology companies incorporated skin tone options into their operating systems, making her app obsolete and leaving her $200,000 in the hole.

And for all of this, she has sued Apple for copyright infringement. The problem, though, is that Apple didn't actually copy any of Parrott's actual designs. Instead, it simply incorporated different color tones into its own existing emoji designs. The amount of money Parrott has put into her business, the fact that she had a meeting with Apple back in 2013, and the rest all mean absolutely nothing when it comes to whether or not this qualifies as copyright infringement. Apple's motion to dismiss from November is exactly on point.

Copyright protects only the expression of ideas, not the ideas themselves. Plaintiff Cub Club Investment has filed an action that contravenes that bedrock legal principle. This case is about “emoji,” which are small graphical images made available in text-messaging and similar applications, sometimes depicting a representation of a human body part, like a hand making a thumbs-up signal. Cub Club alleges it has obtained copyright registrations for several body-part emoji, each in five different shades, to approximate the naturally occurring variation in humans’ skin tones. Apple offers its own body-part emoji, in a different suite of five colors, featuring different renditions of the real-world objects depicted: differently contoured fingers, differently angled thumbs, and so on. Cub Club asserts that Apple’s emoji infringe the copyrights in Cub Club’s emoji, on the theory that Cub Club’s exclusive rights prevent anyone else from offering emoji depicting the same body part as Cub Club’s emoji, in five different hues. That contention is incorrect as a matter of law. It depends on the premise that Cub Club owns a copyright in the idea of chromatically varying emoji, irrespective of whether an alternative rendition of the same concept implements the idea differently. Because the Copyright Act and resulting judicial doctrine are crystal clear that Cub Club’s exclusive rights do not in fact preclude others from implementing the idea of emoji with different skin tones—the very activity Cub Club says gives rise to liability here—Cub Club’s copyright infringement allegations fail to state a claim.

The very latest on the case appears to be a back and forth over the choice of venue. Parrott has pushed to have the case heard in Texas, because of course. After all, that's where all the IP maximalist judges reside. Apple, instead, wants the case heard in California, given that's where most parties and witnesses involved in the suit reside. All the while, of course, Apple doesn't think this case should even make it past the dismissal stage.

Nor should it, if you take even a tiny amount of time to think about it. Whatever use copyright has, it is certainly true that the law was never meant to lock up this sort of idea for diversity in creative outputs.

Filed Under: copyright, emojis, expression, idea, katrina parrott, skin tone
Companies: apple

Sony's New Emoji Animated Movie At Trademark Odds With Guy Who Trademarked Emojis

from the sad-face dept

It probably goes without saying that the word "emoji" is now a full member of the popular lexicon. So popular, in fact, that Sony is apparently going to release an animated film called The Emoji Movie, which will follow the "lives" of a bunch of emojis, for reasons I cannot possibly fathom. But, as the release of the film is currently in the works, Sony is also apparently preparing to fend off a trademark claim from Marco Husges, a game developer and emoji creator.

According to The Hollywood Reporter, however, the studio may also be preparing for a legal battle as one former game developer says he owns the merchandising trademarks for more than 3,000 emoji.

Marco Husges, who worked on the MMO Shadowbane, and on Starbreeze Studios'Enclave, filed for commercial trademarks of the word "emoji" back in 2013. As such, Husges doesn't own the rights to the emoji images people use on their iPhones (which are trademarked to Apple) or Android devices (trademarked to Google), but he does own the rights to his own designs. He also owns the rights to certain words, like "emojitown" and "emojiworld."

Now, were Sony to be insane enough to pilfer unique creatively designed emojis and simply use them in its film, Husges would appear to have a straightforward copyright and/or trademark claim. But there's almost zero chance that Sony would do that, as well traveled as the company is in intellectual property dispute circles. What appears to be more at issue here is Sony's production of a movie with "emoji" in the title at all, not to mention should it attempt to do any merchandising around the film.

"I am curious how Sony would want to produce a movie under that name and do accompanying merchandising, especially given the fact our brand has already been successfully established with license partners and retailers all over the world," Husges told The Hollywood Reporter.

Husges added that the reason he trademarked certain aspects of emoji back in 2013 was to eventually adapt the pictograms for film and television use. He said he believed emojis could be the next Teenage Mutant Ninja Turtles or Minions if the right stories were applied.

Sony has indicated that it will move forward with the movie, with Husges responding that he's ready to take the film studio on in court. Sony, for its part, has begun working with a licensing firm to ensure that the film's characters themselves won't run afoul of any IP issues.

But what of the title of the film itself, or the use of the term "emoji" on merchandise? Can that word really be the subject of a trademark action when it is clearly descriptive? The etymology of the word "emoji" will travel you down the path of the Japanese language and the portmanteau of the terms for picture and character. Emoji is a literal descriptive term for a picture-character. How does that limited use of the word qualify for trademark protection?

To be clear, longer film titles like The Emoji Movie might qualify for trademark protection for films and merchandise, but that isn't what Husges is arguing. Even were Husges to make good on his promise of his own emoji-based animated productions, that doesn't itself render emoji non-descriptive. Given its recent emergence in popular language, it will be interesting to see how the courts view this dispute, should it ever get that far.

Filed Under: emoji movie, emojis, marco husges, movie, trademark
Companies: sony pictures

Teen Arrested For Emoji-Laden 'Terroristic Threats'

from the the-smoking-emoji dept

The question will probably never be satisfactorily answered, but here it is again: what constitutes a "terroristic threat?" According to the NYPD, it's a line of emoji (emoticons) guns pointing at an emoji cop's heads.

Osiris Aristy, a 17-year-old from Brooklyn, does not hold back in his Facebook status updates. He posts about his love for blunts and cough syrup, wanting to buy his mother a bigger home, and his disdain for the police.

Most of Aristy’s anti-cop status updates seem tame compared to the vitriol found all over the internet. They are not altogether different from many hip-hop lyrics, where the figure of the cop killer is sometimes an archetype of rebellion and power.

But on the evening of Jan. 15, according to a criminal complaint, Aristy posted a photo of a revolver with bullets beside it, and wrote he felt “like katxhin a body right now.”

Shortly thereafter, he posted the following:

N***a run up on me, he gunna get blown down,' followed by an emoji of a police officer with three gun emojis pointed at it, according to a criminal complaint.

And at 11:05 p.m., Aristy posted "F**k the 83 104 79 98 73 PCTKKKK," followed by the police officer emoji with two gun emojis pointed at it, the DA's office said.

Here's some of Aristy's earlier "work," for illustrative purposes.


That was enough for the NYPD. Three days later, Aristy was arrested. Due to the recent death of two officers at the hands of a man who posted threats online and actually followed through with him, the NYPD is taking every precaution to avoid a repeat of this tragedy. But this insight into its everyday tactics should give would-be criminals pause, as well as anyone else in the New York City area with publicly-accessible social media accounts.

Police received an arrest warrant from District Attorney Ken Thompson's office after routine Facebook monitoring found that Aristy had posted selfies with guns, selfies with marijuana joints and statements made with emojis threatening to kill cops, according to the DA's office and 83rd Precinct Inspector Maximo Tolentino.

"Routine Facebook monitoring." That sort of statement demands a follow-up, but the NYPD being the NYPD, there won't be any further details forthcoming. Is it some sort of data grabbing software that focuses on keywords and location? Or is it a handful of cops actively monitoring feeds and only capturing "relevant" information? Or is it just a terrible way of rephrasing "someone reported a threat and the NYPD followed up on it." The latter seems most likely, considering Aristy's earlier posts using the same emoji-gun-pointed-at-emoji-cop imagery was ignored.

One thing is for certain: the NYPD is all over perceived threats.

Ever since the December’s lone gunman made good on an Instagram threat to kill two cops, the NYPD has arrested at least five people for threatening police on social media.

(The actual number of cases is likely higher. The NYPD did not respond to repeated requests for the exact number of people arrested on such charges. The department also did not respond to questions regarding the criteria used to decide when to make arrests based on online threats.)

And no further details there, either.

The underlying dilemma will likely never go away completely. There's no bright line between talking smack and issuing threats. A threat isn't a threat without intent and it's very difficult to prove its existence (or lack thereof). But the New York state statute governing terroristic threats -- like many others around the nation -- is a product of post-9/11 legislating. And like the others, it's overly broad. While it still requires prosecutors to prove intent, it's wide open enough to sweep up stupid statements, trash talking and about a million aspiring rappers.

The statute says that any statement intending to intimidate civilians or the government by threatening to commit a specific offense can be prosecuted as terrorism. It adds that a defendant’s unwillingness or inability to actually carry out the threat “shall be no defense.”

Applied to Aristy's emoji, this statute seems to fail. No specific offense is contained in his postings. Only vague but violent assertions. On the other hand, the photo of the revolver adds credence to Aristy's ability, if not his willingness, to carry out the emoji-illustrated threats.

As for the intent, that will be determined in court, if the judge doesn't dismiss the case altogether. Because of the law's broad wording and the NYPD's increased surveillance of suspicious social media posts, there's plenty of room for intimidation and abuse.

“The threshold to make an arrest is not the same as the one for a conviction,” [NY University law professor] Neuborne said. “This gives the police very significant power to harass people.”

Since the bar to obtain an arrest warrant on charges of making terroristic threats is only probable cause of the author’s intent, the NYPD could potentially arrest anyone who makes anti-cop statements, even if they come in the form of emojis.

Aristy is likely looking at doing time, even if the terroristic threat charge is dismissed. Police found 25 grams of marijuana and a gun while searching his residence.

The defining line between threats and free speech is still muddied. A case before the Supreme Court -- involving Anthony Elonis' social media postings (he says the posts were "rap lyrics," his ex-wife and local law enforcement believe they are "true threats") will attempt to sort this out. Whether the ruling will actually clear anything up remains to be seen. At the moment, it's still a great way for stupid and obnoxious people to get arrested for typing faster than their brains can process. Or, as in the case of Aristy, a way to turn self-proclaimed street cred into a prison sentence.

Filed Under: emojis, nypd, overreaction, terroristic threat, threats