In the new Madden NFL 15 video game released last week, the increasingly realistic visuals of the football series take a new step, for the first time showing some tattooed skin. But the inked biceps of San Francisco 49ers quarterback Colin Kaepernick aren’t just a digital detail, they hint a growing issue of artistic copyright in tattoos, sports, and games.
As NPR’s All Things Considered pointed out, tattoo artists who work with athletes are devoting increased attention to their rights, as are the players in licensing their image. Intellectual property attorney Tim Bradley explained to NPR that “copyright law is actually very friendly to the artist, and that protections kick in once you’ve shown a ‘modicum of creativity’ in your design and you’ve put it on a ‘tangible medium’,” but “while you might own the copyright to your design, the recipient still owns their body.”
In gaming, developers are generating their own copy of that work, which is where things get litigious. The very first released screenshot of Madden NFL 15 triumphantly showed Kaepernick front and center, his tattoos as recognizable as in life. However, his are the only tattoos in the game, as he’s the only player who sought out the release from his tattoo artists, something players are being increasingly encouraged to do. Back in 2013, tattoo artist Stephen Allen sued running back Ricky Williams and Electronic Arts for replicating tattoos in the NFL Street video game. The year before that, tattoo artist Chris Escobedo sued video game developer THQ Inc. over replicating — without permission — one of his tattoos on Ultimate Fighting Championship star Carlos Condit, and it was settled for an undisclosed sum. Then the year before that, in a suit that’s being used as a major impetus for protection on both sides, Warner Brothers was sued for replicating Mike Tyson’s face tattoo on Ed Helms in The Hangover Part 2 Hollywood film.
For players like Kaepernick, his tattoos are part of his branded image (just look at his shirtless GQ cover). As Seann Graddy, a producer for Madden NFL, told Polygon, Kaepernick “takes his tattoos as a personal self-expression that he wants represented in any product or marketing thing that he’s a part of.” While we might feel like we own our skin and everything on it, tattoos are more like a roaming gallery for the artist, and as the intense branding of sports stars continues to develop into digital replicas, there will have to be a good regulation of copyright to stop a potential escalation of lawsuits.