For the half-year to 31 December 2014, the IPKat's regular team is supplemented by contributions from guest bloggers Rebecca Gulbul, Lucas Michels and Marie-Andrée Weiss.

Regular round-ups of the previous week's blogposts are kindly compiled by Alberto Bellan.

Saturday, 7 June 2014

Get a licence if you wish to have your tattoos featured in a video game!

The discreet tattoo every
IPKat contributor
gets upon joining the Kat team
Is there copyright in tattoos? 

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.

Carlos Condit
fighting in analogue ...
Specific problems have already arisen in what appears to be the anything-but-playful world of video games. 

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. 
... 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.

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”.

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]

4 comments:

Anonymous said...

I don't know anything about this field, but does US copyright law deem private use as infringing? When does infringement occur? Is it when the tattoo is simply displayed or when it is televised?

Anonymous said...

Not sure I understand your questions, Anonymous @ 10:02...

To what are you thinking is "private use?"

Infringement occurs whenever any of the rights protected by copyright (including copying, distribution, etc) occur. With a videogame, this likely means that each game infringes not only upon sale of the game, but each time the copyright is reproduced while playing the game (sometimes, not so much - if you don't use the avatar of Condit, but if you are a Condit fan, perhaps lots of times)

Displayed or televised are both forms of distribution, and since there is no license, the copyrighted item is technically not exhausted, so both qualify as an infringement on the distribution right.

ex-examiner said...

I would think that, for the UK, the display of a tattoo in a televised game ought to be covered by the exception recited in the UK by CPDA Section 31(1)[incidental inclusion] as the primary object of the broadcast would be to show the game, not the tattoos. This defence would would possibly not hold for video games, where a representation of a tattoo would have to be deliberately created for inclusion in the game

31 Incidental inclusion of copyright material
(1) Copyright in a work is not infringed by its incidental inclusion in an artistic
work, sound recording, film or broadcast.

Anonymous said...

The issue was addressed - after a fashion - by Saki in 'The Background' - http://www.gutenberg.org/files/3688/3688-h/3688-h.htm#background

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