Apple Defeats Copyright Lawsuit Over Emoji Depictions–Cub Club v. Apple

February 17, 2022 · by · in Copyright, Emojis, Trademark

The court summarizes the case:

Cub Club Investment created an app that allowed people to send racially diverse emoji. According to the complaint, when Apple learned of the app, it liked the idea—so much so, in fact, that it copied it.

These screenshots (from the complaint) show the alleged copying:

I trust the differences are immediately apparent. Both emoji sets obviously riff on the same theme, but that type of overlap is impossible to avoid in the emoji context. In my prior blog post, I wrote:

this lawsuit could be an example of emoji trolling. Emojis are an excellent device for trolling campaigns because they inevitably look alike and copyright law provides many powerful tools to copyright owners

Fortunately, the court has no problem rejecting the copyright claim because the emoji depictions weren’t identical:

The copyrighted works are expressions of Cub Club’s idea of racially diverse emoji. Each of the emoji described in the complaint are variations on this theme, depicting body parts in certain positions (thumbs up; thumbs down; a fist; etc.) in varying skin tones. There aren’t many ways that someone could implement this idea. After all, there are only so many ways to draw a thumbs up. And the range of colors that could be chosen is similarly narrow—only realistic skin colors (hues of brown, black, and beige, rather than purple or blue) fall within the scope of the idea. Cub Club’s emoji are therefore “entitled to only thin copyright protection against virtually identical copying.”

As alleged in the complaint, Apple’s emoji are not “virtually identical” to Cub Club’s. Compared side by side, there are numerous differences. Whereas Cub Club’s emoji are filled in with a gradient, the coloring of Apple’s emoji are more consistent. The shape of Apple’s thumbs-up emoji is cartoonish and bubbled, while Cub Club’s is somewhat flatter. Many of Cub Club’s emoji have shadows; Apple’s do not. Even the colors used are distinct—although both Cub Club and Apple have chosen a variety of skin tones ranging from dark to light, the specific colors vary. These differences are sufficient to take Apple’s emoji outside the realm of Cub Club’s protected expression

The court doesn’t use the terms “merger” or “scenes a faire,” but those doctrines underlie the first paragraph.

The court doesn’t cite the recent Copyright Review Board’s ruling on the copyrightability of emojis, where Apple counterproductively sought greater copyrightability of individual emoji depictions. Like this ruling, the CRB ruling indicated that any copyright protection for individual emoji depictions would be “thin.” Despite pushing for greater copyright scope of emoji depictions in the Copyright Office, Apple should be glad that this court took the sensible approach of giving a narrow scope to those copyrights. Apple really should rethink its enthusiasm for individual copyright registrations for emojis, because that legal position spurs claims like this one.

The court also rejects the trade dress claim because emoji usage is functional. (“You can’t build a product for sending racially diverse emoji if the emoji are not racially diverse.”) Among other reasons the claim fails, the court says there’s no consumer confusion between the plaintiff’s app and Apple’s emoji keyboard.

The court gives the plaintiffs a chance to amend their complaint but says it’s “skeptical” they can plead a successful case here. If the plaintiffs do file an amended complaint and fail again, the court ought to issue a fee-shift to Apple.

Fortunately, the court easily reached the right result in this case. Unfortunately, this won’t be the last word on the IP protectability of emojis.

Case Citation: Cub Club Investment, LLC v. Apple, Inc., 2022 U.S. Dist. LEXIS 28086 (N.D. Cal. Feb. 16, 2022)

Personnel note: the law firm Patterson & Sheridan led this lawsuit, with EIGHT lawyers from the firm listed on the caption. All to produce an opinion dismissing the lawsuit in a few breezy paragraphs. #SMH.

Also, the iDiversicons’ inventor got a brief shoutout in 2019 The Emoji Story documentary, which made me wince after seeing this lawsuit.

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