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. This comment has been flagged by the community. Click here to show it
    identicon
    Ivor Nye, 16 Mar 2021 @ 9:13pm

    As ever, siding with white supremacists -- and corporatists.

    Apple STOLE her idea. It's unethical, should PAY.

    Tellin' ya, Timmy, YOU AIN'T EVEN HALF-WOKE if don't see that a black woman is in the right here. You're an oldthinker, citing the "law" made by filthy rich white supremacists for their own benefit. (This is NOT hyperbole on my part -- I never have to resort to it! Clearly Apple STOLE her idea, and I don't care in the least about corporate-favoring legalisms that protect a mega-corporation.)

    reply to this | link to this | view in thread ]

  2. This comment has been flagged by the community. Click here to show it
    identicon
    Ivor Nye, 16 Mar 2021 @ 9:14pm

    Re: As ever, siding with white supremacists -- and corporatists.

    If your views ever get known outside this tiny node of nonsense, you'll be doxxed, complaints to your employer and you fired, maybe protests outside dwelling, and so on. As you deserve. (This too not rhetoric: could happen, and it'd be fine karma for your overall nastiness.)


    Again attempted one comment, didn't go in, but when pieced up, EXACT same text did. Explain that, Techdirt / Timmy, as ANY sort of "filter" artifact.

    reply to this | link to this | view in thread ]

  3. identicon
    Anonymous Coward, 16 Mar 2021 @ 9:41pm

    Re: As ever, siding with white supremacists -- and corporatists.

    what brand of drain cleaner did you drink before you made that post

    reply to this | link to this | view in thread ]

  4. identicon
    MightyMetricBatman, 16 Mar 2021 @ 10:21pm

    As the work becomes more factual the less there is protected by copyright. These are depictions of body parts, highly factual.

    Second, the small size of an emoji drawing does not lend itself to wildly different images while still being recognizable as a body part.

    But this is in front of the Western District of Texas of Waco where the law is whatever that single federal judge wants. See the recent patent 2 billion award against Intel which was in front of this same judge.

    reply to this | link to this | view in thread ]

  5. identicon
    Glenn, 16 Mar 2021 @ 11:11pm

    Yep, it was much better and simpler when all emoji were yellow.

    reply to this | link to this | view in thread ]

  6. identicon
    Anonymous Coward, 17 Mar 2021 @ 1:44am

    Well, at least they aren't suing the Unicode Consortium.

    reply to this | link to this | view in thread ]

  7. identicon
    Anonymous Coward, 17 Mar 2021 @ 2:21am

    I admit to rarely using emoji.

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

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

    reply to this | link to this | view in thread ]

  8. This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 17 Mar 2021 @ 3:07am

    Re:

    Considering you and your white supremacist boyfriends descended on the government just two months ago, blue, watching you back pedal for the sake of your copyright houndmasters is icing on the cake.

    Next time do everyone a favor and wear a proper buttplug. Just because you being a slut for authoritarianism is common knowledge, doesn't mean anyone has to put up with you drooling cum everywhere.

    reply to this | link to this | view in thread ]

  9. This comment has been flagged by the community. Click here to show it
    icon
    PeterPettigrew (profile), 17 Mar 2021 @ 3:17am

    buy AdBlue

    Want to know where to buy AdBlue in South Africa? AirNox Pty Ltd SA's #1 AdBlue Supplier offering AdBlue for sale in SA with unbeatable quality and priced AdBlue to the South African markets.
    Visit-https://airnox.co.za/

    reply to this | link to this | view in thread ]

  10. identicon
    Anonymous Coward, 17 Mar 2021 @ 3:39am

    Having emoji with different skin tones is a simple idea which
    was bound to happen considering the power and graphic
    range of phones continues to increase
    So of course we need emoji to represent different racial
    skin tones
    No one should have get copyright on simple ideas
    You can copyright specific images or symbols
    Eg how the idea is expressed

    reply to this | link to this | view in thread ]

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

    Re:

    "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:

    https://emojipedia.org/man/

    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.

    reply to this | link to this | view in thread ]

  12. identicon
    Anonymous Coward, 17 Mar 2021 @ 5:06am

    iDiversicons?

    How ironic. A lawsuit against Apple for "Stealing her idea" while she is naming her business with Apple's iconic "iSomething" naming scheme.

    She probably doesn't even see that.

    reply to this | link to this | view in thread ]

  13. identicon
    Anonymous Coward, 17 Mar 2021 @ 5:21am

    Re: buy AdBlue

    It is saying something about the local trolls, when they get bleeped faster than the advertising carpetbaggers.

    reply to this | link to this | view in thread ]

  14. icon
    JoeCool (profile), 17 Mar 2021 @ 5:49am

    Not just copyright

    We see this in patents as well. Patents are supposed to cover inventions, not ideas, but you'll see law firms that specialize in patents advertising that they can get your "idea" patented... and they're usually right. The USPTO rubber-stamps just about anything these days, including "inventions" that don't include any kind of real device solving a real problem.

    reply to this | link to this | view in thread ]

  15. icon
    Bluegrass Geek (profile), 17 Mar 2021 @ 6:36am

    Re: Re:

    Look, no one likes that guy, but we could do without the homophobic insults, thank you very much.

    reply to this | link to this | view in thread ]

  16. identicon
    Anonymous Coward, 17 Mar 2021 @ 7:44am

    Batman

    Interesting that you used Batman for the analogy considering that the character is generally recognised as a Dick Tracy rip-off

    reply to this | link to this | view in thread ]

  17. icon
    Jeffrey Nonken (profile), 17 Mar 2021 @ 8:28am

    Re: Re: As ever, siding with white supremacists -- and corporati

    You obviously don't know how things work. Your willing ignorance does not give you any kind of moral stance.

    reply to this | link to this | view in thread ]

  18. icon
    Uriel-238 (profile), 17 Mar 2021 @ 1:22pm

    Google Emoji Kitchen

    I wonder if this is going to affect the Emoji Kitchen that Google rolled out which allows emojis to combine in interesting ways. Usually each one serves as a modifying rule for the others, so an Avocado + a face will replace the pit of the avo with the face.

    So far it's limited. Not all emoji are represented, but enough of them are to make interesting ideas.

    reply to this | link to this | view in thread ]

  19. identicon
    Anonymous Coward, 17 Mar 2021 @ 2:53pm

    Re: iDiversicons?

    While Apple was hardly the first to use iSomething (even the name iPhone predates mobile tech entirely, and iOS is licensed from Cisco), Apple does indeed use it a lot.

    reply to this | link to this | view in thread ]

  20. identicon
    Anonymous Coward, 17 Mar 2021 @ 5:40pm

    Re: Re: Re:

    Homophobic? I've always thought blue was a girl.

    reply to this | link to this | view in thread ]

  21. identicon
    Anon, 17 Mar 2021 @ 10:09pm

    Apple and White Power

    I see the "OK" symbol - thumb and forefinger in a circle, three other fingers splayed out - is an Apple emoji - but apparently it is also a white power sign now, I hear... Especially if you use the lightest skin tone version I suppose. I'm waiting for the fake outrage to blow up on that (akin to the fake outrage for Obama's "lipstick on a pig" comment)

    reply to this | link to this | view in thread ]

  22. icon
    Tanner Andrews (profile), 18 Mar 2021 @ 7:50pm

    Re:

    Western District of Texas of Waco

    Odd, it was the Eastern District in Marshall that was getting all the patent troll business.

    reply to this | link to this | view in thread ]


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