Everything You Wanted to Know About Emojis and the Law
For the past couple of years, I have invested significantly in all things emojis. This post rounds up everything I’ve done during that period.
1) Emojis and the Law Article
I’m pleased to announce the final version of my paper, Emojis and the Law, was published in the Washington Law Review last month. This version supersedes my working draft, Surveying the Law of Emojis, that became one of my most popular SSRN downloads of the past 15 years. Some topics in the working draft got dropped from the final version, so for those points the working draft is the better citation.
You may be wondering why I posted the full working version, only to write a virtually new version and publish that. In March 2017, relatively late in the placement season, I circulated the working draft to about 50 journals and got zero offers. The journals’ lack of interest surprised me in part because the draft went on to spur a ton of conversation and many downloads, so I’m pretty sure some journals missed a prime opportunity. In any case, I decided to rework the paper and recirculate it in early February 2018, when it attracted over 10 offers. I’m OK being candid about coming up dry in the 2017 cycle because the placement process is fickle, and I’m not the only one who’s experienced its capriciously. I have concluded, however, that the only placement window I trust is the first two weeks of February because the so-called August window has also been dicey.
I chose the Washington Law Review for several reasons, including their willingness to publish it comparatively quickly (placement in February, actually published in October!) and their genuine enthusiasm for the article. How enthusiastic were they? For a law school costume contest, the editorial board dressed up as emojis in honor of the article:
Some media coverage of the Surveying the Law of Emojis draft:
- Use of emojis in lawsuits is on the rise, ABA Journal, October 2017.
- Experts: Lawyers can’t dismiss emojis as frivolous clutter, Massachusetts Lawyers Weekly, June 22, 2017.
- Law professor says courts need to develop ‘necessary tools’ for interpreting emojis, Northern California Record, May 25, 2017.
- Beware the Emoji Troll, Managing Intellectual Property, May 20, 2017.
- What You Need to Know About Emoji Law (Yes, That’s a Thing), The Recorder, May 4, 2017.
2) Emojis and IP Article
After I posted the Surveying draft, WIPO Magazine asked me write a short article on Emojis and IP. In turn, I asked my former student Gabriella Ziccarelli, also an emoji expert, to collaborate with me. The article largely summarizes the larger work, but because it branched off about midway through the project, it has some pieces that don’t show up anywhere else. If you only want the highlights of the emojis/IP interface, the short piece might be a better choice than the big battleship document.
Co-authoring an article with a former student is one of my greatest professional moments. It’s incredibly gratifying to see our alumni thrive.
3) Blog Posts
Some of my emoji-related blog posts (all but the last one are outtakes from the Surveying draft):
- Displaying Emoji Evidence in Judicial Opinions
- Frequency of Courts’ References to Emojis and Emoticons Over Time
- Trademark Registrations for Emojis
- Copyright Registrations for Emoticons and Emojis
- How a Chipmunk Emoji Cost an Israeli Texter $2,200 (with Gabriella Ziccarelli)
I’ve been patiently waiting for a really juicy emoji interpretation or IP case. Thus far, the Israeli small claims court case is the most “meaty” emoji ruling I’ve seen. I’m sure it’s coming, but it still hasn’t arrived yet. If you see any good cases, please send them my way!
4) Caselaw Dataset
I initially became interested in emoji law after seeing a court opinion reference to emoticons, which made me wonder how often that had happened. Eventually, I compiled every case referencing emojis and emoticons that I could find, and I have keyword alerts set up in Lexis and Westlaw to flag new ones. Unfortunately, there’s no automated way for me to find opinions displaying emojis or emoticons unless the court opinion actually uses one of those phrases, so my list is incomplete. (I fully explain the problems with judicial opinions and emojis in the Surveying draft).
Today I’m sharing the latest version of my caselaw dataset, which I update constantly. As you can see, I have found about 165 opinions referencing emojis or emoticons, of which about 30% are from 2018. I’ll have more to say about the 2018 cohort of emoji/emoticon cases in January.
5) Presentations and Interviews
I’ve given about a dozen talks on emojis. Some of my slide decks:
- My standard slide deck
- Emojicon (these slides contain some material I’ve not written up elsewhere)
- Bay Area IP Profs WIP talk on emojis and IP
- Emojis and the Law, Techdirt Podcast, August 22, 2018 (with Gabriella Ziccarelli)
- “Danke, Internet!” – Folge 4: Emojis vor Gericht, Süddeutsche Zeitung, July 10, 2018.
- Using emojis could land you in jail, expert says, February 21, 2018 (the video was widely syndicated across the nation on local TV news programs)
- Online Sex Trafficking, Emojis, and How the Internet Has Changed Law, Law.com Podcast, August 1, 2017 (talking about emojis was way more fun than talking about FOSTA)
The university also put together a promo video.
6) Emoji Items
For me, emojis are not just an area of academic study, they are now an integral and happy part of my life. Some examples:
- I have decorated my office with many emoji stickers. Photo (I’ve since added dozens more).
- My kids bought me an emoji tie. Photo (with USPTO Director Andrei Iancu). I also bought the Techdirt Emoji-ment sweatshirt.
- At IPSC, my fan club honored my birthday with a Poop Emoji cake.
- My emoji mug. Photo.
- Combining two of my all-time favorite things, I have a dozen emoji slinkies!!!