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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Comments on “Apple Sued Over 'Diverse' Emojis Which Is All Idea and No Specific Expression”

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22 Comments

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Ivor Nye says:

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.)

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Ivor Nye says:

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.

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Anonymous Coward says:

Re: 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.

MightyMetricBatman says:

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.

PaulT (profile) says:

Re: 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.

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Anonymous Coward says:

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

JoeCool (profile) says:

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.

Uriel-238 (profile) says:

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.

Anon says:

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)

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