Geek Trivia: Pros and (emoti)cons

Who is credited with inaugurating the era of the online emoticon--a tech pioneer who first formally proposed the use of a punctuation-based "smiley" to indicate the emotional tone of statements made on the Internet?

Theoretically, if you've ever typed a colon or semicolon in sequence with a parenthesis with the intent of indicating the emotional tone of a written statement, then you just might owe somebody a royalty fee. Contrary to all conventional wisdom, the use of certain emoticons -- which is the term of art for those little smileys and frownies composed of punctuation marks -- is trademarked in certain contexts. Seriously.

Despair, Inc., creator of the infamous Demotivator posters, owns the U.S. frownie copyright -- but only on printed materials. A Russian entrepreneur, Oleg Teterin, claims rights to various smileys and frownies but promises not to enforce them on end users -- just on deep-pocket tech outfits. And in Finland, where many a text-friendly mobile phone is made, almost as many emoticon expressions are protected under trademark law.

The secret to trademark and copyright enforcement is context. As mentioned, Despair, Inc. only locked up a particular frownie -- :-( -- in a few types of print media. Other emoticon claims revolve around the conversion of punctuation strings into animated images, as happens in instant message applications. Nobody could reasonably apply for, obtain, or enforce a blanket right to all emoticons everywhere. Moreover, trying to prevent people from typing out an emoticon without first paying a license fee is unlikely to get much legal backing, though common sense has little to do with it. You can thank the legal intellectual property concept of prior art.

The documented use of emoticons goes back more than a quarter century -- and is older than the word emoticon itself. More to the point, the use of punctuation-based symbols to denote tone (especially sarcasm) is older still. No less a literary authority than Vladimir Nabokov told The New York Times in 1969 that, "I often think there should exist a special typographical sign for a smile -- some sort of concave mark, a supine round bracket." The ARPAnet was just getting the hang of packet-switching at that point, so it's safe to say the idea of an emoticon predates the Internet.

By 1982, Internet-based communication was common enough that its regular users had recognized the need for something akin to the "supine round bracket" that Nabokov proposed -- and somebody said so. While many users probably independently solved the problem, one man gets credit for launching the emoticon concept -- if not the word -- into the online lexicon.


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By Jay Garmon

Jay Garmon has a vast and terrifying knowledge of all things obscure, obtuse, and irrelevant. One day, he hopes to write science fiction, but for now he'll settle for something stranger -- amusing and abusing IT pros. Read his full profile. You can a...