Bought for $45, Sold for Over 1 Billion Dollars

Massachusetts resident Harvey Ball must have figured he’d landed a pretty sweet deal. It took him ten minutes to make Smiley and got paid 45 dollars for it. And that was in 1963.

The original aim of the job was to boost employee moral of a certain insurance company but the Smiley design was such a hit that by 1971 more than 50 million were sold. Ball never thought of copyrighting Smiley, nor did the company that first ordered the design, and that caused Smiley to land in the Public Domain. How on earth could that have happened?

Only in 1988 the US entered the then 102 year old Berne Convention – an international copyright agreement which was brought about by the rather European idea that something that is yours is still yours even when you didn’t tell anyone. By then, however, Smiley was no longer anyone’s but everyone’s and once something is in the Public Domain, it’s hard to get it out.

The Berne Convention was named such because it was hammered out in Berne, the capital of Switzerland. Much of the preliminary hammering, however, was done by Victor Hugo, who was French and quite deceased when the Berne Convention was at long last achieved. Extra ironic it is therefore that a certain Frenchman named Franklin Loufrani was able to either purloin the design, or as he claims, miraculously conceive of the same and register Smiley® as his own. Loufrani’s UK based company Smiley® World now holds ownership of Smiley®’s name and logo in more than a hundred countries.

In the US, however, the deal is still a bit shady. In 2008 Wall Mart lost a Smiley-based case against Loufrani, but in 1999 Smiley’s American father Harvey Ball began licensing Smiley to fund his World Smile Foundation (established in 2001), a non-profit organization devoted to spreading the smile. But although the World Smile Foundation states, “We encourage manufacturers to consider using our smiley logos on products and we encourage retailers to consider carrying those products,” it’s not very clear if these manufacturers owe license fee to anyone or if Smiley lives happily ever after in the Public Domain of the US. The World Smile Foundation resides in Massachusetts but, according to the website, any questions regarding licensing should be addressed to a club called JASS international Inc., Tokyo, Japan.

Meanwhile, far away in London, Franklin Loufrani’s Smiley® World produces and engages Smiley® to promote nothing less than happiness, great communications, the spreading of positive values and ease of life!

The Smiley® World Licensing site informs its baffled spectators that Smiley® is one of the most recognizable icons in the world and “one of the few licensed brands to have exceeded 1,000,000,000 USD in sales.”

In 2005 Smiley® World “decided to share its success and create SmileyWorld Association®,” and pledged a whopping 10% of its profits to providing “assistance to victims of social seclusion.”

That sounds very urgent and worthy of immediate scrutiny, but as this articles goes to press (a cool three years after SWA’s launch), the link from Smiley® World Licensing to SmileyWorld Association® contains a typo, and leads to an inhospitable 404. Once we find the coveted SWA website we face a slick Flash concoction that fails to scroll. Under the link “Ethical Products” it says “coming soon.”

On the official Smiley® World website we find the following (quote used under the doctrine of “Fair Use”):

Some people make the mistake of referring generically to icons as “smileys” or “smilies”. This is an incorrect use of ous “SMILEY ®” trademark. Please make sure that you reffer to “SMILEY ®” only as a trademark fro the icons (or other products and services) os SmileyWorld, Ltd.

You’d think that for $1,000,000,000 in sales Mr. Loufrani could buy himself a fabulous website and a somewhat sober content editor.