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.

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

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  1. icon
    PaulT (profile), 17 Mar 2021 @ 4:15am


    "That said, as far as I've seen... didn't most/all 'human' emoji have skin tones of 'yellow'?"

    Yes, there used to be, but the emoji standard sets are upgraded regularly and different skin tones were added as a not to either inclusiveness or to reflect the reality that not everyone looks the same, depending on your point of view.

    From those standards, each software developer comes up with their own interpretation of how they're displayed, and these interpretations can vary quite wildly, but the default yellow is still present on most devices. See here for the example of the default "man" emoji:

    Note below the listed examples that there's now variations of the "man" emoji listed for people who want to implement the extended sets.

    "If so would this be possible the only instance where Caucasians are as discriminated against as "black"s?"

    Given that the new sets included several variations of described skin tone of skin tone including light/caucasian, then no. Implementations might vary, but nobody's being specifically discriminated against unless you really want to stretch things.

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