Emojis are essential when composing the perfect message. They can be used at the end of a text message to change its tone, but also have the power to stand alone when a user wants to convey a message without words. Arguably, Apple does them best, with hundreds of emojis that encompass almost any object, metaphor, or activity that a user is trying to convey. In 2015, Apple was commended for introducing racial diversity into their emoji keyboard, giving users the ability to give the characters five different skin tones.
In September 2020, Cub Club Investment LLC (CCI), the company of Katrina Parrot, an African American businesswoman, filed a lawsuit in Waco, Texas against Apple for copyright infringement and trade dress infringement, for copying her racially diverse Emojis without a licence or her consent. In July 2013, CCI registered the copyright to its diverse set of emojis with the US Copyright Office. In 2014, Ms. Parrot launched the application iDiversicons®, which allowed users to select emojis of five skin tones. Later in 2014, Ms. Parrot began discussions with two senior members of Apple about introducing the idea of diverse emojis into Apple products, which included how to develop and improve the emojis. These discussions ended when Apple decided to create their own diverse emojis. They were released on Apple systems on April 9, 2015, after which iDiversicons® experienced a decrease in sales.
The potential success of CCI’s copyright infringement lawsuit is likely quite low. Copyright law cannot protect facts, concepts, ideas, or methods of operation. Instead, it is used to protect the way that these things are expressed. This means that the idea of creating racially diversified emojis cannot be protected. CCI’s argument would then turn to the expression of this idea – however this argument will face its own challenges.
Emojis depict an actual thing; whether it be a person, object, or symbol, these things are well-known and have certain distinguishing features. For example, to create a realistic thumbs-up, there will be the commonalities of a clenched fist and an upwards facing thumb no matter who or which platform depicts it. There are only so many variations of the thumbs-up shape and design by which emojis can distinguish themselves. The similarity between emojis in different platforms – Apple, Google, Samsung, etc. – illustrates this concept. This means that protecting the use of a generic ‘thumbs up’ emoji will be difficult unless the two are virtually identical – and in the case of CCI, it does not look like they are. There are variations in colour, shading, and shape between the emojis of iDiversicons® and Apple.
The claim also states that, “Apple’s actions also significantly harm innovation and America’s progress in diversity and inclusion… The significance of Apple’s wrongdoing is amplified by the fact that Apple’s willful actions target the creative works of the very community CCI seeks to support and include through iDiversicons® emoji.” It is surprising that Apple, as a company who has committed to working on and improving their diversity and inclusion initiatives, did not address the numerous letters to Apple, asking for recognition of CCI, iDiversicons®, and Ms. Parrot’s role in the development of the diverse emoji. It will be interesting to see how the court, and hopefully Apple themselves, respond to this claim.
Sarah Raja is a JD Candidate at Osgoode Hall Law School. She is a IPilogue contributing editor and was a fellow with the IP Innovation Clinic.
