17 February 2022Copyright

Apple scores win in diverse emoji copyright suit

Apple has persuaded a Californian court to throw out a lawsuit that accuses the technology company of wilfully infringing copyrights covering ethnically diverse emoji characters.

Yesterday, February 16, District Judge Vince Chhabria of the US District Court for the Northern District of California dismissed Cub Club Investment’s suit, after finding the Texas-based company didn’t show that Apple had copied anything that was eligible for copyright protection.

While Cub Club now has two weeks to file an amended complaint, Chhabria noted that, “having seen many of the emoji side by side in the complaint, the court is sceptical that Cub Club will be able to allege copyright or trade dress infringement in an amended complaint”.

Back in September 2020, Texas-based Cub Club Investment accused Apple of copying African-American businesswoman Katrina Parrott’s diverse emojis in a suit filed in Texas that later transferred to the Californian court.

Seven years before the suit, Parrott had launched the iDiversicons emoji brand in the Apple app store, which the suit claimed is the “world’s first diverse emoji”. The works-at-issue include emoji with five skin tones: African-American, Asian, Latino/Hispanic, Indian, and Caucasian.

Parrott, the CEO of Cub Club, began discussing a partnership with Apple during a Unicode Technical Committee meeting in 2014.

According to the suit, Parrott provided senior Apple employees with access to the emojis and created additional emojis in the hopes of partnering with the technology company. But, in 2015, Apple released its own diverse emoji designs.

In addition to claims of copyright infringement, the suit also accused Apple of trade dress infringement, unfair competition, misappropriation, and unjust enrichment.

Yesterday, Cub Club’s suit was dismissed, with Chhabria finding that, even if the allegations in Cub Club’s suit are true, the “idea is all that Apple copied”.

Chhabria said: “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 colours that could be chosen is similarly narrow—only realistic skin colours (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’.”

The judge added that the differences between Apple’s emoji and Cub Club’s emoji, including shadows and colouring, are “sufficient to take Apple’s emoji outside the realm of Cub Club’s protected expression”.

If Cub Club does not file an amended claim within 14 days, the dismissal will be with prejudice.

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More on this story

21 September 2020   Texas-based Cub Club Investment has accused Apple of wilfully infringing its copyrights covering ethnically diverse emoji characters.
19 April 2022   Apple has succeeded in persuading the US Court of Appeals for the Federal Circuit that it should be able to fend off claims relating to Wi-Fi messaging patents in a California court.