Emojis and the Law

64 Pages Posted: 8 Mar 2018  

Eric Goldman

Santa Clara University - School of Law

Date Written: 2018


Emojis are an increasingly important way we express ourselves. Though emojis may be cute and fun, their usage can lead to misunderstandings with significant legal stakes—such as whether someone should be obligated by contract, liable for sexual harassment, or sent to jail.

Our legal system has substantial experience interpreting new forms of content, so it should be equipped to handle emojis. Nevertheless, some special attributes of emojis create extra interpretative challenges. This Article identifies those attributes and proposes how courts should handle them.

One particularly troublesome interpretative challenge arises from the different ways platforms depict emojis that are nominally standardized through the Unicode Consortium. These differences can unexpectedly create misunderstandings.

The diversity of emoji depictions isn’t technologically required, nor does it necessarily benefit users. Instead, it likely reflects platforms’ concerns about intellectual property protection for emojis, which forces them to introduce unnecessary variations that create avoidable confusion. Thus, intellectual property may be hindering our ability to communicate with each other. The Article will discuss how to limit this unwanted consequence.

Keywords: emoji, emoticon, kaomoji, interpretation, copyright, trademark, language, communication, standards,

JEL Classification: K12, K13, K14, K4

Suggested Citation

Goldman, Eric, Emojis and the Law (2018). 93 Washington Law Review ___ (2018, Forthcoming). Available at SSRN: https://ssrn.com/abstract=3133412

Eric Goldman (Contact Author)

Santa Clara University - School of Law ( email )

500 El Camino Real
Santa Clara, CA 95053
United States
408-554-4369 (Phone)

HOME PAGE: http://www.ericgoldman.org

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