If you’re out and about shopping at your local Walmart or Target store, you’ve probably noticed a lot of products adorned with emoji, like the seemingly ubiquitous smiling pile of poo. Have you ever wondered if you can just make your own emoji merchandise?
The simple answer to that question is “maybe,” but it depends on the emoji you want to use.
Copyright, specifically in the United States, automatically applies when a work is created and then established in some clear and definite form. For example, if you draw a picture or write a book, that work is yours and you own the copyright to it.
Emoji are Unicode characters, which means that they’re part of the universal computing industry standard for encoding and representing text on systems around the world. In other words, if you enter an “A” on a computer in California, it will show up as an “A” on a computer in Calcutta.
The same holds true for emoji. Because emoji are Unicode, no matter what you send to someone else, they should appear as such to that person. If you send a red heart emoji from a mobile phone, no matter the platform, it will be represented as a red heart emoji to the recipient.
Thus, emoji are basically like letters and numbers and you’re free to use them to express yourself in your various communications, whether they’re in your emails or text messages. But while you can’t copyright the letter “A” or number “2” or a specific emoji, you can copyright the way in which those characters are represented.
In other words, if you create a typeface, even though others may use it as much as they want as means of communicating, they could infringe on your copyright if they use that typeface for commercial purposes, such as in a logo or product they’ve created. And that is where you can run into trouble, because various emoji sets may be copyrighted just as if they’re a typeface.
This is why emoji look different on various platforms, whether it’s an iPhone, Android device, or Windows computer. A company like Apple either buys, licenses, or creates the fonts on their systems—including emoji. So you can’t just go around using Apple’s version of an emoji without getting permission.
Therefore, if you want to use the smiling pile of poo emoji for your own commercial purposes, you typically have three options:
- Contact the copyright holder for the version you want—such as Apple’s legal department—and hammer out some kind of deal to license their specific emoji.
- Find an emoji set such as EmojiOne that is free to use for your own personal or commercial purposes, or pay to use a stock photo service such as Fotllia.
- Draw your own pile of poo emoji and use it as you see fit (just be sure your emoji don’t look like a blatant ripoff of someone else’s).
So if you’re planning on creating a line of clothing emblazoned with an emoji message, make sure that the specific emoji or emojis you’re using aren’t copyrighted or that you’ve obtained permission to use them.
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