Get a licence if you wish to have your tattoos featured in a video game!
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| The discreet tattoo every IPKat contributor gets upon joining the Kat team |
As IPKat readers will remember, this fascinating question was addressed in a number of posts [here, here, here, here, and here] last year.
Most of them were prompted by publication on Forbes of an article that reported rumours that the NFLPA [this is the organisation that represents professional American football players in the National Football League] has become increasingly concerned about potential copyright claims concerning its members' tattoos, and has started advising agents to tell their players that, when they get tattoos, they should get a release from the tattoo artist and, if they can track down their former artists, they should get a release as well.
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| Carlos Condit fighting in analogue ... |
As the IPKat reported, back in 2012 an Arizona-based tattoo artist named Chris Escobedo sued video game publisher THQ over the UFC Undisputed games.
As summarised by The Legal Satyricon, the plaintiff had tattooed a lion on US mixed martial fighter Carlos Condit’s rib-cage, and claimed that he owned a valid copyright to that image. Therefore, unauthorised use by THQ of his work in UFC Undisputed 3 was tantamount to copyright infringement.
THQ expired shortly after the proceedings were brought, so Escobedo's claims "migrated" to a bankruptcy court. Among other things, as reported The Hollywood Reporter and PCGames, this court was asked to value the worth of a tattoo copyright infringement.
Escobedo claimed that this amounted to $4.16m, ie 2% cut of all post-bankruptcy sales of UFC Undisputed 3. The judge disagreed and valued the claim at a slightly lower value: $22,500, this being the same amount Condit himself had been paid for the use of his image in the game.
Clearly Escobedo was not satisfied with this outcome. He appealed the order before a bankruptcy appeal panel. Escobedo's attorney asked to determine what royalty a hypothetical negotiation between his client and THQ would have produced and made the argument that Escobedo would have negotiated a per game royalty rather than a one-time fee. The debtors replied that Escobedo's claim must be reduced to reflect, among other things, the likelihood that a tattoo on another person's body cannot be protected by copyright.
Escobedo claimed that this amounted to $4.16m, ie 2% cut of all post-bankruptcy sales of UFC Undisputed 3. The judge disagreed and valued the claim at a slightly lower value: $22,500, this being the same amount Condit himself had been paid for the use of his image in the game.
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| ... and virtual format |
Clearly Escobedo was not satisfied with this outcome. He appealed the order before a bankruptcy appeal panel. Escobedo's attorney asked to determine what royalty a hypothetical negotiation between his client and THQ would have produced and made the argument that Escobedo would have negotiated a per game royalty rather than a one-time fee. The debtors replied that Escobedo's claim must be reduced to reflect, among other things, the likelihood that a tattoo on another person's body cannot be protected by copyright.
Now there is another case (yet a non-litigious one) concerning tattooed sportsmen and video games.
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| Colin in action |
As reported by Bloomberg Businessweek, Katfriend, apparent tattoo lover, businessman [here and here] and San Francisco 49ers quarterback Colin Kaepernick will be duplicated on his digital avatar in the forthcoming Madden 15 video game.
Fair enough, but: what about his tattoos?
According to ESPN, in order to feature the sportsman and his tattoos in the video game, it was necessary to clear all the rights, including obtaining specific licences from all Kaepernick's tattoo artists.
It is still unclear whether tattoos are protectable copyright subject-matter under US law [for a different jurisdiction, see this intriguing Belgian case here]. The case that could have provided an answer - this being the famous The Hangover Part II litigation - was settled out of court, although there Judge Catherine D Perry of the Federal District Court in St Louis said that Mike Tyson's tattoo artist had a “strong likelihood of prevailing on the merits for copyright infringement”.
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| An official screenshot for the new Madden 15 video game |
Being the legal scenario still uncertain, the position of the NFLPA can be summarised with the words of its assistant executive director: “All we are doing is proactively telling players, ‘Yes, we know you love your tattoo artists, but regardless of whether or not you trust them, regardless of whether or not there are legal merits to the lawsuits that we’ve seen, just protect yourself’”.
Is this the way to go? How are organisations and companies dealing with similar issues in other jurisdictions or other sports, eg football [the 2014 FIFA World Cup is just about to start, and the official video game is already available]?
