Etched Within Flesh – Inking Copyright

Last night saw the start of The Hubs’s favorite time of year – football season. With football season also comes the release of this year’s Madden NFL® video game. As NPR reported earlier this week, HERE, the video game will have at least one more realistic element. For the first time, the game will feature visible tattoos on player Colin Kaepernick of the 49ers. Why have tattoos been avoided thus far in the video game franchise and what intellectual property issues should be consider?

Long before players inked deals to play for an NLF team, those players made the decision to get some ink on their body. For copyright to exist it must be an original work of authorship fixed in a tangible medium. A tattoo does reach the minimal level of creativity necessary in order to receive protection.  There is a minimal degree of creativity in a tattoo from color choice, size, placement and shading. A tattoo is more than “fixed” because it is etched within flesh. There is a permanence about each of the creations. The tattoo artist is undoubtedly the author of the creation. On the surface, all appears to point to copyright protection. But, it just doesn’t feel right.

There seems to be something inherently wrong to say that a person could have some ownership rights over something that permanently becomes part of your flesh. To date, there has not actually been a case with a decision. The most recent filing, HERE, came after the The Hangover Part II film which featured Ed Helms with a face tattoo strikingly similar to the one Mike Tyson has on his face.

The case settled outside of court after some procedural rulings, but not before the judge alluded to the idea that tattoos could be subject to copyright protection in one of those rulings. The Judge stated that the tattoo creator’s likelihood of prevailing in the case as “strong” and no reasonable dispute regarding the ability for tattoos to receive copyright protection. I was hopeful the Compendium on U.S. Copyright Office Practices would address this controversial issue, but it did not.

Which brings us back to Madden NFL® video game. As a copyright owner, in our case the tattoo artist, has the exclusive right to make reproductions of the art. Meaning, every time the tattoo is recreated whether that be in a video game, or in a film, or in a book of photography, technically you might need a license from the tattoo artist. Until this year, the Madden video game people have played it safe and simply eliminated tattoos on any of the players. It was just easier.  Not true to life and realistic, but easier.

As the NPR article reported, the NFL® encouraged all players to “acquire all the rights to their tattoos.” But, is this a realistic expectation for guys in their 20s and 30s to think this way? Let’s face it while some tattoos are deliberate planned out events, as the Hangover Part II showed us, oftentimes they are the result of a good time out with friends, usually in a vacation spot spurred along by one too many adult beverages. In an alternate universe, I imagine a world where potential NFL players have intellectual property attorneys on speed-dial ready to join them at 3:00 a.m. to negotiate the terms of a license with their neighborhood tattoo artist.

It’s an ideal scenario the NFL® suggested, but not very likely.

The arguments to not allow copyright protection to extend to tattoos seem to be most persuasive with the ideas of freedom, liberty and personal choice. Could a tattoo artist restrict the activities of a person? For instance, if the tattoo artist refused to license the tattoo to be shown in film or if the individual was endorsing a product the tattoo artist did not want to support. There are also issues of right of publicity, which varies from state to state.

Finally, an even more interesting question to me – is where does trademark law come in? Or, does it? Could a person, like a Mike Tyson, be so intimately linked with a product or source of goods and his image and tattoo be also so linked that it now considered a trademark? After all, if a smell can be subject to trademark protection then why not a tattoo? The lesson here is this – before you ink your deal with the NFL® you might want to rethink any ink in the future.

What do you all think?  Should copyright law extend to tattoos? What about the issue with it becoming a trademark?  Take part in the Comment sections below and Stay Tuned In!

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2 thoughts on “Etched Within Flesh – Inking Copyright

    • Exactly. I think it’s a dangerous rode to go down. William, are you going to sign up to be one of the IP attorneys “on call” at 3:00 a.m. to join a soon-to-be NFL star at the local tattoo parlor? 🙂

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