Emoticons

Who owns them?

[Phil_C]

These little smiley faces are everywhere, :) and most of them *look* the same, so is it a free-for-all when using them on your own website? does anyone actually own them?

[rogerd]

If you created a unique one, you could probably enforce a copyright just as you could if you created a unique illustration. With a million standard smilies out there, though, I don't think anyone is worrying about ownership.

If you rip one off, though, do NOT hotlink it from the original site. (You never know what it might change into if the owner detects the bandwidth theft and substitutes another image that might surprise your visitors. ;))

[korkus2000]

The person I knew who made a couple of sets just threw them out there. No copyright at all. I think the common ones you see distributed with forum software are free use. If the software is not distributed, and the emoticons are unique, I would think they are not free use.

[Hagstrom]

On a less-than-serious note: the Frowny is actually a registered trademark of Despair inc.

They applied for ownership as a parody on all the frivolous Internet patents, and - much to their surprise - their application was accepted.

[despair.com...]

[mgream]

Copyright protection for smilies may be problematic because of the various de minimis requirements where copyright has not been allowed for very simple expressions - and at least in EU/UK, you must prove tangible link between original and copy (this is not so in the US). Copyright may succeed for more complex, original forms of smilies.
Trademark is not likely to succeed for smilies other than those with particular form such as style, font, arrangement, complexity, etc. It would be very unlikely that any court would uphold trademark on the 10-20 or so well known and in use smilies.
The trademark granted to the frowny may for a particular form related to the business/etc at hand, or may be struck down by the courts [just because a patent/trademark is granted, doesn't mean that it is valid].

[ggrot]

mgream. I think you are thinking of text things, like :) or :D . I think the question was in relation to images that have smily faces on them. I think if it is unique, you need to watch out. If everyone seems to have em, no big deal. They aren't very hard to make yourself anyway.