New Draft Paper on Emojis and the Law

May 8, 2017 · by · in Content Regulation, Copyright, Emojis, Evidence/Discovery, Licensing/Contracts, Trademark

I have posted a draft article, entitled Surveying the Law of Emojis, to SSRN. I will be posting excerpts from the article here over the next few weeks.

I would gratefully appreciate your comments on the draft. I am also interested in workshopping the paper more. If you have any workshop opportunities (especially in Fall), please contact me.

For more background on the project, see this article by Ross Todd of the Recorder.
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The abstract:

Everyone loves emojis! It’s easy to see why. Historically, most online communications have emphasized text, and emojis add much-needed emotional content to text-driven communications—and often help people express themselves more precisely. Due to the enthusiastic embrace of emojis, we are witnessing a historic change in how we communicate online.

This article surveys three significant ways the emoji revolution will impact the law.

First, questions about what emojis mean will arise in a wide range of legal doctrines, from criminal law to contracts. Our standard interpretative tools generally can handle new communicative technologies, but several aspects of emojis will require careful consideration. Most significantly, senders and receivers will unexpectedly see different versions of an emoji due to technological intermediation, leading them to make reasonable—but different—interpretations of the same communication, with potentially adverse consequences for one or both parties. The article will explore some steps that would reduce the risks of these misunderstandings.

Second, emojis will often qualify for copyright and trademark protection. However, IP protection encourages platforms to differentiate their emoji implementations, which exacerbates the risks of miscommunications and misunderstandings. To mitigate this outcome, IP protections for emojis should be interpreted narrowly.

Third, emojis create some issues for judicial operations, including if and how judges will display emojis in their opinions, if emojis in court opinions will be searchable, and how best to present emojis as evidence to fact-finders.