If a picture paints a thousand words…

Some scientists believe Neanderthals possessed a modern vocal tract and were therefore capable of modern speech. Alas, probably not, the boffins concede, the complete range of sounds that modern humans produce. That leaves us imagining palaeolithic campfire communication to be a series of grunts and gestures understood by the participants. It’s the gestures and signage we’re interested in. For what is an emoji if not a modern-day grunt or gesture? And now here comes a tale, without any campfire-cosiness, on emoji theft. You see, there’s money in those keyboard ‘grunts’.

When two tribes…

Katrina Parrott hails from Houston, Texas. She’s an entrepreneur. A little while ago her daughter complained that she couldn’t properly represent herself in electronic communication with her friends because the then range of Apple emojis was too restricted. The Parrott family is black. Katrina Parrott launched an iPhone App allowing users to copy and paste emojis with five different skin tones. She said:

“We did African American skin tone, we did Asian, Caucasian, folks from India and those who are Latino and Hispanic. We covered all the bases.”  

Long story short, Parrott claimed she went to Apple with her idea in 2013 when she set up iDiversicons to develop and deliver the App. In 2014 Apple said it would not be working with her. In February 2015, Apple launched its own diverse emoji range rendering iDiversicons superfluous. Battle commenced.

Parrott ploughed $200,000 of her savings into the project. She was full of confidence. Telling the Washington Post:

“What I learned in business is if you come up with an idea that nobody else has and you’re the first on the scene, it gives you a real good opportunity to be successful. “

Indeed. That’s the theory.

She was, she claimed, “heart broken” when Apple took her idea as its own and shunned her involvement in the concept. Apple said it had its own team of “human interface designers” who would handle all aspects of the emoji design. With a job title like that and a whole team of them, probably reasonable that Apple wanted them to sing for their supper.

This notice to Parrott from Apple, was neatly described by her lawyer, in the copyright infringement suit that followed, as:

“The woman who was trying to improve inclusion gets excluded.”

Parrott said she was unlawfully copied and pushed aside by the tech giants.

I Second that Emoji…

But the lawsuit, strong as it may have looked, failed. Apple’s second phase of ethnically diversified emojis was not held to breach Parrott’s copyright or steal her work. Her claim was, as they say in the States, “tossed out” of the Federal Court by the judge. How so?

It’s all about the law. Law doesn’t ‘do’ emotion.

The first principle of copyright law is you cannot protect the idea itself. You can only protect the expression of an idea. In Parrott’s case the designs of the emojis not the idea of diverse skin tones. To win her case she needed to show that Apple’s diverse range of emojis were substantially similar to hers.

At this point we enter a sub-world of IP called ‘thin copyright protection’. Bear with us.

This is where there are only so many ways to depict a particular subject matter – e.g. an emoji ‘thumbs-up’ image. In this world, your copyright ownership is something so ‘thin’ that, at best, it can only afford protection if the rip-off image is virtually identical.

The judge in this case held:

• the “idea” of diverse emoji can’t be copyrighted.
• Parrott failed to show that Apple copied anything that was eligible for copyright protection.
• There were several design differences between Parrot’s emojis and Apple’s, including colouring and shape.
• Parrott owned ‘thin’ copyrights.
• There were no protectable trademark rights.

The Final Countdown

Katrina Parrott quite probably had her idea misappropriated. To ordinary folk looking on, that doesn’t seem fair. But copyright law was destined to fail her in this case because for it to bite, the idea must live in a particular image. It did. And in Apple’s, who’s images and designs were sufficiently dissimilar to avoid infringement.

Interestingly, according to Emojipedia, there is no emoji for theft. There’s an opening.

Powers of communication have come a long way since pre-history. Don’t doubt it. Here’s the proof. Right here. You have just read an article all about emojis without a single emoji image being used. What you used instead, was your imagination. That’s quite something. Smiley face.

Murray Fairclough
Development Underwriter
OPUS Underwriting Limited 
+44 (0) 203 920 9985
underwriting@opusunderwriting.com
Researched by Ben Fairclough