49ers Quarterback Obtained Copyright Waivers for Video Games

San Diego – The bicep tattoos on San Francisco 49ers quarterback Colin Kaepernick will be featured on his digital incarnation in the next “Madden” video game. The Biblical verses and religious references tattooed on the arms of Kaepernick’s virtual self will be featured on screen shots from the Electronic Arts game scheduled for an August 26th release.

Kaepernick obtained copyright waivers from the two tattoo artists who designed and inked the tattoos on his skin to avoid running afoul of copyright law. This would be the most high-profile example of an NFL player taking the advice of his union when it comes to clearing tattoos. In this particular case, both the NFL Players Association and EA insisted that he obtain the permission to use the images in the game.

“Madden” producers say they would like to get the rights to the tattoos of other players in the future. In the past, Electronic Arts and other video game companies have been sued for re-creating tattoos in their products without the artists’ permission. However, the cases almost always settle.

In order for artwork to be copyrightable, it needs to have some form of originality and be “fixed in a tangible medium of expression.”  Such a medium could be a canvas, film or audio. In the case of a custom tattoo designed by an artist, the individual’s skin becomes the canvas or medium.  Since tattoos tend to be derivative or other preexisting works, in the case the bible, at times the tattoo artist may not actually own the underlying copyright so the artist’s rights could be in question.

There was a recent similar lawsuit over the 2011 blockbuster “The Hangover Part II” in which a replica of Mike Tyson’s famous facial tattoo is inked on one of the characters’ foreheads. The artist who designed that Maori-inspired tattoo sued Warner Bros. Entertainment for copyright infringement since it did not get his permission to use the imaeg. The judge who presided over that case agreed with the artist that tattoos can be copyrighted.  So, it is not surprising that NFL officials are urging players to be proactive and protect themselves by securing the copyright waivers from the tattoo artists.