Archive for the 'Laws' Category

How do the Courts Handle Emojis, Part 2: Emoji Law

Earlier this week, we discussed how the courts have handled emojis and emoticons in the past. They’re well equipped to interpret these issues–from smiley faces to champagne and squirrels. Despite the complications inherent to the medium of emojis and emoticons we discussed last time, they’ve consistently found a way to work out their meaning. Perhaps most importantly, the courts clearly do not discount emojis and emoticons when determining the meaning of evidence.

So how does this background translate when it comes to individual questions of law? The answer is quite complicated as how “emoji law” works varies substantially from topic to topic. However, we’ll address one of the most common questions related to emojis–can sending an emoji be sexual harassment? We’ll turn from there to what is likely the most complex issue when it comes to emojis and emoticons–their intellectual property treatment.

emoji_1Can Emojis Be Sexual Harassment?

Is sending a suggestive emoji–such as a kissy face or eggplant (commonly used to represent a phallus)- sexual harassment? This is a common question to hear but the answer to this is very simple–yes it absolutely can. However, like all evidentiary issues it will be a matter of interpretation for the courts.

Sexual harassment requires serious or pervasive conduct, because of the plaintiff’s gender, that is unwelcome. This means that if a boss (or even a coworker) sends a kissy face text to an employee every day after work, that could likely qualify.

Even one sufficiently suggestive string of emojis could rise to the level of sexual harassment. The cause of action does not require economic or psychological harm to succeed, just a situation which a reasonable person would consider creating a hostile work environment.

This means it’s a case by case issue and the court will need context to rule on the issue. However, it’s a safe policy to adopt to not send flirtatious emojis to coworkers or employees.

Intellectual Property and Emojis

We’ve talked about situations where emojis and emoticons come into play as evidence to interpret. However, in the realm of intellectual property the emojis and emoticons themselves become the center of attention as they can be protected by both copyright and trademark law. But the protections available to both are justifiably quite limited. This is an issue which has been deeply discussed by Santa Clara Professor Eric Goldman.

Copyright protection applies to any minimally original work of authorship as soon as it is fixed in a tangible medium–regardless of registration. This means that, while registration is necessary for an infringement lawsuit, copyright protection theoretically attaches to individual emojis and emoticons as soon as they are made. The originality standard is quite low and 2D art is explicitly included in copyright law. Indeed, around 100 emoticons and emojis have already received the protection of copyright law.

This means that emojis and emoticons presumptively qualify for copyright in most situations. However, since they are so simplistic their protection is incredibly minimal.

Type on a page is generally not protected at all, which rules out the simplest of emoticons such as a basic smiley face. More complex emoticons such as “putting on sunglasses” (•_•) / ( •_•)>⌐■-■ / (⌐■_■) may clear this threshold. Even still, there are many more protected emojis than emoticons with emojis more than tripling the number of successful copyrights that emoticons have received.

However, both emojis and emoticons have issues which limit the strength of their marks. Since they are so simple, merger doctrine limits them. This means that, because there are a very limited number of ways of expressing what they represent, they only get protection against near identical representation. For example, there are dozens of variations of the gun emoji between platforms and its unlikely any of them could enforce a copyright against another.

What’s more, scènes à faire is a doctrine like merger which holds that copyright does not protect stock characters, settings, or events that are common to a subject matter or medium because they are commonplace and lack originality. This means that nobody can have the full rights to the idea of a smiley face, a gun, a car, etc.

While copyright protection does exist for emojis and emoticons, it is likely that it is generally so thin as to protect against only virtually identical reproductions. What’s more, no matter the protection on emojis, personal non-commercial use of emojis is very likely fair use.

Fair use is an equitable defense for de minimis use of something protected by copyright. However, fair use is an evidence heavy multiple factor test. This means results are hard to nail down with absolute certainty. However, a fair use defense in a situation like the one discussed above would be quite strong.

Even beyond copyright protections, there is the potential that somebody could seek to get trademark protection on an emoji or even turn their own branding into an emoji for public use as part of a sort of viral advertising campaign.

Experts on the issue, such as Santa Clara Law Professor Eric Goldman, fear the potential of somebody getting a trademark on a common emoji and using that mark to hunt down use–similar to how patent and copyright trolling works.

Goldman himself acknowledges that such lawsuits and the underlying marks are unlikely to be particularly strong. Trademarks protect against consumer confusion and must identify a good or service to be confused with before an issue arises.

Use in conversation certainly wouldn’t qualify. To even have a small chance, and this is a very small chance, the emoji would have to be a particularly unique one and the defendant would have to use it in some sort of marketing or advertising to promote their own goods or services.

However, as is common with patent trolls prosecuting a weak patent, an “emoji troll” might threaten the lawsuit then seek a quick settlement for less than the usual costs of the initial phases of a lawsuit.

One additional issue with branding using emojis–or turning your logo itself into and emoji–is the issue of genericide. We’ve discussed this issue a few times before and the issue here is much the same as why business owner’s are typically advised not to use their brand names as verbs.

Genericide is where your brand name is such common parlance that it is not specifically associated with your brand anymore–Kleenex for example. Google has faced genericide claims a number of times over the phrase “googling,” although it has never lost these arguments in court.

If you make your mark an emoji, it might take on a totally different meaning in the public’s eyes and undercut your trademark protection. This is speculative and no court has ever addressed this issue, but it is something to keep in mind. There are certainly more than a few emojis that have taken on a meaning in common conversation that one would not normally expect–for instance you should probably be careful about using snake and eggplant emojis.

A Growing Issue Worldwide

The use of emojis as evidence has skyrocketed in the last two years, both here in the U.S. and abroad. Courts have dealt with the issue as far away as Israel and New Zealand. However, the issue is only going to continue to grow. Fortunately courts are well equipped to interpret something like an emoji or emoticon–even if the meaning of the emojis themselves can be hard to pin down.

Emoji use is likely going to continue to grow and evolve. This means we’ll only see more cases like this in future. For now, be careful how you use your emojis. You may accidentally be entering a contract with that flamenco dancer!


Jonathan Lurie is a Founding Partner of The Law Offices of Lurie and Ferri (Contact Info). He primarily handles business law, employment law, and intellectual property issues, but works with all types of civil matters. He is a Vice-Chair of the Sports and Entertainment Interest Group of the California Intellectual Property Section and has won awards for his knowledge of intellectual property, start-up business issues, and California civil procedure. 

How do the Courts Handle Emojis, Part 1: Interpreting Emoji’s

In 2016, 92% of the online population was reported to use emojis and emoticons in their messages. A total of 2.3 trillion messages were sent which had emojis or emoticons in them. In 2017, 71% of U.S. citizens said they used emojis when asked for a survey. Emojis are an enormous cultural force, entire websites exist to define the different emojis and the sheer number of emojis and emoticons in circulation continues to consistently grow.

As such an enormous part of our daily communication it’s no surprise that these emoticons and emojis have found their way into the courts quite a few times–requiring courts to figure out exactly what they mean in each context.

Emojis have made their presence felt in the legal system for years now. However, the number of U.S. cases dealing with them have skyrocketed in the last few years. 2016 saw 30% of the total cases dealing with emojis in the history of the U.S. If you combine this with 2017, the last two years have included nearly have of all the cases dealing emojis since they first appeared.

These little images have had an impact on cases ranging from criminal threats to landlord tenant law to contract situations. So how exactly do the courts deal with them? What impact do they have on law such as intellectual property or workplace sexual harassment?

It’s a larger topic than you may imagine, so much so that even a cursory glance is going to need two articles to break down. In today’s article we’ll be looking at how the courts look at and parse emojis and emoticons. Later this week, we’ll switch gears and look at some of the most common legal questions that come up in the context of emojis–how they’re treated for sexual harassment and intellectual property purposes.

emojiWhat are Emojis and Emoticons?

First and foremost, it’s worth defining our terms. At this point, pretty much everybody knows what an emoji is and list off a laundry list of examples–emoticons have existed since around 1982. However, there is an important distinction between emoticons and emojis.

Emoticons are a combination of existing symbols to form an image. They can be as simple as a smiley face such as this :). They can be as complicated as the popular table flipping emoticon– /(╯°□°)╯︵ .

However, the important point on which they differ in definition from an emoji is that while an emoticon is made of symbols existing on your keyboard an emoji is an independent image such as a frowning face, a dog, a car, etc. Emojis are much more recent than emoticons. However, at this point it is likely that emojis see more use by the public.

It’s also worth noting that some emojis and emoticons are near universal, while others are proprietary to specific platforms or have variations from platform to platform. Regardless, both are so pervasive in modern communication that courts have been addressing and interpreting them for years.

Emojis in the Courts

Interpreting non-written language–physical gestures for example–is nothing new to the courts. They’ve been doing it for many years, emojis and emoticons are in many ways just another form of this. Many courts have been well equipped to deal with these issues. There are many examples of them doing just that.

In 2011, a Texas man put forth a particularly distasteful argument in his criminal violent sexual assault case that the defendant had consented to sex via a winking face in an otherwise non-sexual text. Thankfully, the court was not buying it and the man was found guilty after they ruled that you could not read that much into a winking smiley face in a text.

The year 2015 saw quite a few notable emoticon cases. A case dealing with the online black markets of the Silk Road ruled that the original emoticons in all communications related to the case should be preserved as they had the potential to change the meaning of statements–even make them mean the opposite of the text.

The Supreme Court even heard a case dealing with emojis. They overturned the conviction of a Pennsylvania man for criminal threats against his ex-wife on Facebook. The threats in question included quotes of threatening rap lyrics and redone scripts from a sketch comedy show to change the context to threatening a wife. The man relied partially on an argument that his threats shouldn’t be taken seriously since they ended in a 😛 emoticon.

The same year saw courts throw out allegations against a New York teenager after he was arrested by police on charges of terrorist threats for posting on social media “run up on me, he gunna get blown down” followed by a police officer emoji and three gun emojis. The court felt these emojis were insufficient to establish that he was making an imminent threat of violence against the police.

More recently, a Michigan court ruled on emojis and emoticons. The court looked at the “:P” emoticon in a defamation case, ruling that the emoticon meant that the statement proceeding it was meant as a light hearted and sarcastic statement as opposed to a defamatory statement to be taken as a serious attack on character.

The court looked to an Israeli court ruling as part of reaching its decision. In the Israeli case, the court ruled on a text reading “Good morning — 🙂 — we want the house ” followed by emojis–in order–of a flamenco dancer, two dancing girls, a peace sign, a comet, a squirrel, and a champagne bottle, then more text reading “just need to go over the details…When suits you?”

The court decided that the celebratory tone of the text, along with its content, reasonably led the landlord to believe the person texting was making an offer on the house–although they didn’t act as a binding contract. The consistency in the type of emojis used apparently convinced the courts of their reasonable interpretation.

Problems When Courts Interpret Emojis

As you can, see courts can and have interpreted emojis as part of their rulings. The above examples are just a few situations of many more where courts have dealt with this problem. However, this doesn’t mean that this interpretation doesn’t raise issues unique to emojis and emoticons.

There an enormous number of emojis and emoticons out there now–a number that is growing every day. There is very little out there in terms of official definitions for these emojis. Websites exist however they have varying levels of success or accuracy when it comes to rounding up every emoji or even properly defining them.

Emojis frequently take on a meaning different from their intended meanings. The folded hands emoji was originally meant to symbolize please or thank you but is much more frequently used as a symbol for praying or a high five.

The skull emoji is very rarely used to symbolize actual death, more frequently used as embarrassment or something else. There’s also very little history here for more recent emojis that courts can look at to define their meaning–the usual approach courts take in defining something like a gesture.

When emojis are strung together, it can change their meaning entirely–making interpretation a more case by case issue. They can also mean a totally different thing from one group to another. For instance, in Japan the bank emoji with the letters “BK” embedded in it is not associated with banks at all but is rather used to represent the slang term “bakkureru” which means hiding from your responsibilities.

This is just one example and you need not travel to a different country to see emojis change meanings, emoji meaning can vary by platform or even friend group. This can easily lead to miscommunications leading to perceived contracts (an email chain can easily make a contract in the right circumstances) or even criminal threats as we’ve seen in the above cases.

How this will impact a case will vary based on the law in question and the facts–usually making it an evidentiary issue. Some sections of law, such as contracts, have established means of handling such misunderstandings among the parties themselves–regulating what happens when one party misinterprets the other party’s meaning.

However, it will still by and large be a case by case issue. It is an issue that is pervasive to nearly every area of law as an evidentiary issue and becomes even more complicated when emojis meet intellectual property law such as copyright or trademark. However, that’s an issue for later this week. Check back later and we’ll go from understanding the basics of “emoji law” to where the rubber hits the road–how they’re treated on specific legal issues.


Jonathan Lurie is a Founding Partner of The Law Offices of Lurie and Ferri (Contact Info). He primarily handles business law, employment law, and intellectual property issues, but works with all types of civil matters. He is a Vice-Chair of the Sports and Entertainment Interest Group of the California Intellectual Property Section and has won awards for his knowledge of intellectual property, start-up business issues, and California civil procedure. 

Is It Protected Speech: Can You Legally Flip Off a Cop?

On August 21, 2017 Indiana State Police trooper Matt Ames pursued a driver along U.S. 41. Ames cut off another driver, Mark May, in order to catch the driver. As Ames cut off May, May “gave the finger” to Ames. When Ames saw the gesture, Ames pursued May and ticketed him for “provocation.” Indiana Criminal Code charges an individual for $500 if the person “recklessly, knowingly, or intentionally engages in conduct that is likely to provoke a reasonable person to commit battery commits provocation.”

Mark May challenged his ticket at Terre Haute City Court. The traffic judge found May guilty. May appealed his ticket and won, whereby the conviction was dismissed. The District Attorney’s office declined to proceed further with the case.

Mr. May is now suing the state of Indiana, with assistance from the ACLU, for violating his First and Fourth Amendment rights. The ACLU of Indiana alleges that May’s gesture was expressive conduct protected by the U.S. Constitution. The lawsuit also argues that the state trooper engaged in an unconstitutional search and seizure because Ames lacked probable cause to stop May. May seeks damages, including lost income for his two days from work for his court appearances.

protected speechConstitutional Speech or Provocative Conduct?

The ACLU has made two claims, but the Fourth Amendment claim is dependent on the First Amendment argument. If flipping off a police officer is constitutionally protected speech, then the officer would need another probable cause to stop the vehicle.  If it is not, then Trooper Ames would have witnessed a crime in progress (provocation) and would have probable cause to stop May.

The Supreme Court has ruled that speech can be more than mere words. Conduct can also be a means of communicating ideas. The Court is especially protective of political speech, especially speech meant to change government policy or to protest government conduct. Flag burnings are protected speech under these rules. If “giving the finger” to a government figure is a means of protesting the government, then it would also be protected speech. Suppose that a President of the United States walked down the street and everyone on the street gave him a middle finger salute as he passed by. The First Amendment would protect anyone who pointed their finger at the President.

On the other hand, there might be situations where engaging in provocative behavior would endanger not only the defendant, but the general public as well. Suppose that a gang member was driving down the highway when a member of a rival gang cut in front of him. When the gang member gave the other driver the finger, the rival gang member responds by shooting at him. The other driver misses his target and ends up shooting a nine-year old girl in another car.  Clearly, the middle finger would be a proximate cause for the murder in that case. This example is slightly exaggerated, but road rage in a gun happy culture is a bad idea.

Between these two extremes, we can derive a few ideas where this kind of law might be acceptable. First, government officials should not be able to abuse provocation to protect themselves from citizens. Second, the law should be narrowly tailored so that it protects the public from people who might injury others because of a fight.

How Will This Case Play Out?

The anti-provocation law, as written, is constitutional. Application to this case is a little harder. The fact that Trooper Ames was acting as a representative of the state at the time is central here. Normally, a court would ask whether giving another driver the figure would reasonably cause the other driver to commit battery. If we assume everyone is an adult capable of controlling their emotions, the answer is probably no. So we must ask if Trooper Ames gave the ticket because he was offended or because he thought other drivers would be offended if they were in his situation.

The state would lose if Ames pulled May over because he was personally offended by the gesture. Ames would be abusing his power by punishing a citizen for a personal grudge instead of enforcing the law as an agent of the state. Likewise, the state would lose if May gave Ames the finger because May thought that a police chase would be unsafe or that the person Ames was trying to catch should not have been targeted.

The only way that Ames could lawfully ticket May for giving him the finger is if May was angry that a car, regardless if it was a cop or not, had cut him off and if Ames thought May’s reaction would likely cause any other driver to react poorly. If this exact situation sounds too farfetched, then Mr. May should be able to legally flip off Trooper Ames.

California Increases Anti-Discrimination Protections for Those with Military Service

With over a million men and women on active duty and many times that number in civilian veterans around the U.S., protecting the employment rights of those who have served is an incredibly important issue. In California, new laws have taken effect as of January 1st of this year which will help protect those with military service when it comes to employment.

As of September of last year, California had the most active military that called the state home of any state, beating out Texas by around 20,000 people at 180,000 active military. Perhaps it’s no surprise they’ve taken these extra steps with the newly effected Assembly Bill 1710.

Some level of employment protections against discrimination based on military service already exist in most states and at a federal level. However, the new rules in California take these protections even further than before and provide additional penalties for violations. Let’s take a look at the federal rules and the new California protections to understand what these rules mean for you or your business.

Federal Law and Existing California Law

The Uniformed Services Employment and Reemployment Rights Act, better known as USERRA, and the Veteran’s Employment and Training Services (VETS) Act are likely the two most substantial federal protections for veterans in the workforce. USERRA makes it illegal to discriminate in employment, firing, or promotions based on somebody’s military service.

The VETS act provides training and employment placement services to veterans. Additionally, the 2011, Veterans Opportunity to Work and Hire Heroes expanded training and placement and programs. USERRA, however, represents the main federal anti-discrimination provisions protecting civilian veterans in the workforce.

military serviceIn California, the law prohibits discrimination against an officer, warrant officer, or other enlisted member of the U.S. military or naval forces based on their membership or service. This protection includes, among other things, discrimination when it comes to employment. There are civil and criminal penalties for those who violate these provisions. AB 1710 takes these rules even further.

The Changes of AB 1710

The new bill expands the protections already in place, although it does not replace them, to include some more specific elements of the employment process beyond just hiring, firing, promotions, and general negative employment action. The new bill also expands the definitions of the discrimination rules to broaden the scope of those impacted by the law. Finally, the act makes it a criminal misdemeanor, as well as a civil cause of action for damages and attorney’s fees, to violate California military anti-discrimination provisions.

The new rules prevent prejudice or injury based on military service or membership from any person, employer, officer or agent of a corporation, company or firm. The new rules prevent discrimination in the terms, condition, and privileges of employment, position or status.

This is beyond the usual protections against being refused a job or promotion based on military status and ensures that veterans are not denied benefits compared to those in similar positions based on their military membership. Benefits which cannot be denied include, but are not limited to, health care (although it can be at the employee’s expense), life insurance, disability insurance, and seniority status. The new rules also extend these protections to employment actions taken by an officer or employee of the state, or any county, city, municipal corporation, or district based on military service status.

The rules also make it a misdemeanor and civil cause of action for a person to refuse entry to an active service member of any military branch access to any public entertainment or place of amusement–along with several other locations–based on the fact that they are wearing their military uniform.

Employers are also not allowed to fire somebody over their performance of any ordered military duty or training. They also may not hinder them from performing any military service or attending drills, instruction, or anything they are called on to perform. This includes acting prejudicing the employee’s terms of employment, threatening to fire them, etc.

Private employers are not allowed to fire or take negative employment action against an employee based on any temporary incapacity–taken out of commission for 52 weeks or less–due to duty in the National Guard or Naval Militia.

Finally, the new rules prevent discrimination in lending or financing based on a person’s membership in U.S. military or naval forces. This means that lenders cannot deny a loan to an otherwise covered borrower just because they serve or served in a branch of the military or in the National Guard.

Important Steps Towards Protecting Our Military and Veterans

AB 1710 is taking some substantial steps in expanding the anti-discrimination protections of those who chose to join the military or National Guard in service of the United States. These new rules expand not only the protections but also the enforcement mechanisms behind those protections.

As a former or current military member in California, it’s crucial to know the protections available to you. This new law has expanded your rights quite a bit and it’s important to know them, so you can protect yourself in the workplace. As an employer, it’s important that you keep your policies up to date to stay out criminal and civil legal hot water. Talk to your HR department and make sure you’re keeping everything compliant with these new rules.


Jonathan Lurie is a Founding Partner of The Law Offices of Lurie and Ferri (Contact Info). He primarily handles business law, employment law, and intellectual property issues, but works with all types of civil matters. He is a Vice-Chair of the Sports and Entertainment Interest Group of the California Intellectual Property Section and has won awards for his knowledge of intellectual property, start-up business issues, and California civil procedure. 

Court Orders Amish to Use Electrical Sewer Pump

A Pennsylvania Appellate Court has ordered an Old Order Amish family to use an electrical sewer pump. The electrical sewer pump would connect the Amish home to the main municipal sewers of the county.

The Amish have often fought with local, state, and even the federal government about compliance with laws that govern the rest of society. The right to home school children exists because the Yoder Amish were successful in winning an exemption from Wisconsin’s compulsory education laws in the 1970s. The Amish are most famous for shunning the use of modern technology, including the use of electricity.

The majority opinion of the court is that the Yoders would not be burdened by the electrical pump. The Yoder Amish have incorporated other electrical devices into their lifestyle, including telephones, power tools, and even cars, without religious conflict. The electrical pump would connect the Amish family’s house to the main sewer line, thereby preventing a potential public health hazard.

amishJudge McCullough dissented, arguing that there less intrusive ways of disposing sewerage without the use of an electrical pump that would violate the Amish’s religious beliefs.

The Sanctuary of Hearth and Home

Although maintaining religious freedoms with public health standards usually requires a balancing act, very little balancing is required in this case.  Laws must not substantially burden religious practices without a compelling reason and without a better way of achieving that goal. If there is a way of disposing sewerage without the use an electrical pump, then the Amish should prevail.

Logically, there must be a way to dispose of sewerage without electricity. Removing human waste is a problem that has existed for as long as society has existed. Since mass consumption of electricity only began in the late 1800s, there must have been ways of disposing human waste before the modern era. If the Amish are willing to take on the burden of using pre-electrical methods of removing sewerage, there is no reason they should be compelled to use technology that is against their religious beliefs.

The majority’s focus on whether the Amish use technology is thus misplaced. Even if the use of an electrical device would not significantly burden the Yoders, Pennsylvania has yet to show that there isn’t a better way. The question is not whether the Amish can use modern technology, but whether the Amish have a way of addressing the public health issues without resorting to modern technology. If they do, then the Amish’s religious beliefs can be preserved without conflict.

What’s the Takeaway?

The most striking aspect of this case is that it involves such an intimate area of human living. The state seeks to regulate the bathroom of a private home. Most people don’t care about what happens after they flush their toilet, but this is government intrusion into a part of the house that most people prefer others not view. This is more intrusive than a bakery refusing to bake a wedding cake. Pennsylvania should work harder to accommodate the Amish’s religious beliefs than they have.