Is an emoji art that can be copyrighted or a font that cannot? CUB CLUB v. APPLE

Is an emoji art that can be copyrighted or a font that cannot? CUB CLUB v. APPLE

As technology evolves new legal questions present themselves.  The hand written symbols and glyphs of ancient people evolved into written languages. The printing press and movable type allowed books to be mass produced and spurred a new era of communication.  Similarly computers and the internet have created an environment which allows ideas to be transmitted around the world in the blink of an eye.

Ancient hand copied books were works of art with embellishments added to the words to make the text more interesting.  With the advent of movable type, the concepts of typeface and font were introduced.  The typeface is a particular design of type, while a font is a type in a particular size and weight. A typeface is a family of several different fonts of a similar style.  With the advent of computers, the distinction between typefaces and fonts eroded.  Most people think of Times New Roman as a font, but technically, it is a typeface and the different sizes and styles (bold, italic, regular) are the fonts.

Designing a new font can be a lucrative business, many companies choose a specific font to identify their corporate brand and will license unique designs.  The question then becomes how can the creator of a new font protect their creation from being copied?

Copyright immediately comes to mind as a method of protecting a font from unauthorized copying.  Unfortunately, copyright in the United States explicitly excludes typeface from copyright protection.  The rational for this exclusion originates from the era of movable type, which was considered a utilitarian object.  Copyright law protects artistic works, and while creating a new typeface may be considered artistic by some, the United States Congress felt that it was too functional to be granted copyright protection.  37 CFR § 202.1(e) – Material not subject to copyright – explicitly states that typeface is not eligible for copyright.  This means movable type in its physical form cannot be copyrighted, and by extension the digital version cannot be copyrighted either.

As computers have developed the ability to store and transmit data has increased.  Computers encode data in several different standards, one of which is Unicode.  There are 1,111,998 possible Unicode characters which has give computer programmers the ability to encode just about every character of every language with space left over.  Some enterprising programmers have used the leftover space in Unicode to create Emojis.

Emojis are “pictographs—images of things such as faces, weather, vehicles and buildings, food and drink, animals and plants—or icons that represent emotions, feelings, or activities.” Unicode is just raw data, so fonts are used to make the data more interesting to look at, and different versions of Emojis have been created.  The question then becomes are Emojis subject to the same copyright protection exception as fonts?

Cub Club Investment, LLC, v. Apple, Inc., 6:20-cv-856 (W.D.TX 2020) is a case that attempts to carve out a bit of copyright protection for Emojis.

Plaintiff in this case developed a group of emojis, titled iDiversicons, that represent hands with different skin tones.  The purpose of the emojis are to allow a  sender of a message to send emojis that have a skin tone similar to that of the sender.  Plaintiff has registered its Emojis as works of visual arts with the United States Copyright Office.  An example of Plaintiff’s work is represented above on the left.  In 2014 Plaintiff successfully petitioned Unicode to reserve space in the Unicode standard so that Emojis of different skin tones could be transmitted between computers.

Defendant is an international producer of smart phones and other devices which send messages using Emojis.  In 2014 Plaintiff had a meeting with Defendant’s Senior Director for Frameworks and Fonts and presented the iDiversicons.  Defendant did not license the iDiversicons and later developed their own set of diverse skin tone  emojis.  Plaintiff then filed suit for copyright infringement.

In its complaint Plaintiff is careful to present iDiversicons as works of visual art, and not a font.  However it is not clear if this will be enough to survive a motion to dismiss.  A cardinal rule of copyright is that expressions of ideas are protected, not the underlying idea.  This means two different artists can create their own interpretation of the same idea.  Even if Plaintiff can get a court to agree that Emojis are protected by copyright, they will still have to prove Defendant copied the iDiversicons instead of independently creating their own.

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