If you paid close attention to the emoji on the left, you may have noticed that it looks slightly different from the ones that pop up on your phone. This is because you need a license to use copyrighted emojis. For this reason, all but one of the emojis present in this article were provided free by http://emojione.com.
Emojis’ ubiquity leads many people to assume that they are part of the public domain. However, this is not the case. In fact, emojis are considered to be intellectual property, and, like other intellectual property, are subject to copyright protection—though the scope of that protection may be limited.
Copyrights are only given to original works that are fixed in a tangible medium of expression, such as a sheet music for a song. Copyrights cannot be given to intangible ideas like “surprised” or “sad.” And for this reason, ideas imparted through a particular Emoji cannot be granted protection, and the “surprised emoji” typewould not be able to be copyrighted.
However, you can copyright how this form of idea is expressed. In this way, emojis differ from fonts. Fonts tend to be difficult to copyright because of the limited extent to which you can alter the appearance of letters without losing meaning. By contrast, emojis can be more visually complex, and can be altered significantly while still maintaining their original connotation. Thus, Copyright owners of emojis take the original ideas presented by the emoji types and create a new collection of emojis through re-interpretation, embodying the same idea in a unique, tangible representation. For instance, Google’s surprise emoji, is clearly different from EmojiOne’s surprise emoji.
Taking advantage of these margins for creativity, companies like Apple, Facebook, and Microsoft have all been granted copyrights for their unique versions of emoji used on their operating systems. However, their availability for public usage varies by company. Some companies like Google and Twitter openly license their copyrighted emojis, while companies like Apple are far more restrictive about third party usage of their emojis.
For example, Google and Twitter have both made their emoji sets open source and available for unrestricted access so long as a license and copyright notice accompany their use. You can find these emojis at https://www.google.com/get/noto/help/emoji/ and https://github.com/twitter/twemoji, respectively. In contrast, Apple has been more resolute in not offering licenses for its collection of copyrighted emojis. According to Rule 5.2.5 in the App Store Review Guidelines, “Apps and extensions, including third party keyboards and Sticker packs, may not include Apple emoji.” For this reason, numerous applications that have utilized Apple’s copyrighted emojis have been getting rejected.
One alternative to the big tech companies’ branded emojis can be the website previously mentioned, EmojiOne, which allows the usage of its emojis for commercial reasons with proper attributions. The requirements for EmojiOne are not as stringent as those of Google or Twitter, and a link to their website will suffice. However, if attribution would be a problem, then EmojiOne also offers premium licenses that do not require any attribution for its usage.
Lastly, another option would be to simply create your own collection of emojis that are sufficiently different from, and is non-derivative of, any existing copyrighted set. Although you would automatically own the copyright to the particular set of emojis you created, you must register the copyright with the government to become the prima facie owner from a legal standpoint. Saper Law can help in filing your copyrights, see here for more information.