The Player, the Video Game, and the Tattoo Artist: Who Has the Most Skin in the Game?

By Commander, Jennifer L. | Washington and Lee Law Review, Fall 2015 | Go to article overview

The Player, the Video Game, and the Tattoo Artist: Who Has the Most Skin in the Game?


Commander, Jennifer L., Washington and Lee Law Review


Table of Contents

I. Introduction...................................................................1948

II. The Copyright Act of 1976: Questioning Its

Applicability to Tattoos.................................................1952

A. What the Copyright Act Protects............................1952

B. Tattoo Artists' Rights Under the Copyright Act.....1955

III. (Questionable) Precedent: What the Cases Suggest.....1956

A. Reed v. Nike, Inc......................................................1956

B. Whitmill v. Warner Brothers Entertainment, Inc............................................................................1960

C. Allen v. Electronic Arts, Inc.....................................1963

D. What the Cases Mean..............................................1964

IV. The Scholarship's Alternatives: Failed Proposals to Protect the Interests of Artists, Industries, and Clients.....................................................................1965

A. Fair Use...................................................................1965

B. Work Made for Hire.................................................1969

C. Joint Authorship......................................................1972

D. Implied Nonexclusive License.................................1974

E. The National Football League Players Association's Advice to Players...............................1976

V. A Better Solution: The Featured Use Test....................1977

A. Reiterating the Problem: Valid yet Competing Interests...................................................................1977

B. When All Else Fails.................................................1978

1. The Policy Position: Prioritizing Personal Dignity over Protection for Artists....................1978

2. Considerations When Crafting a New Test.......1980

3. The Featured Use Test......................................1981

VI. Conclusion......................................................................1987

I. Introduction

In August 2014, EA Sports, a gaming empire, released the fifteenth version of Madden NFL, a video game that allows the player to simulate a professional football game using avatar versions of NFL players.1 The Madden NFL series warrants praise for its immense success-more than 100 million copies sold over the last twenty-five years-and for its realism, as "[t]he NFL superstars definitely look like their real life counterparts would."2 Consistent with the game's goal to become more realistic with each release, Madden NFL 15 boasted the new addition of one player's tattoos, while simultaneously adding in some legal issues concerning copyright law.3

During an interview with Polygon, Madden NFL's line producer* * * 4 Sean Graddy confirmed that concerns about tattoos and copyright prevented tattoos from previously appearing in the popular video game series once it transitioned to high-definition consoles.5 Colin Kaepernick, quarterback for the San Francisco 49ers, remains the only player with tattoos in Madden 15, as the process of securing licenses from Kaepernick's tattoo artists took "a fair amount of work."6 Madden's desire to depict players' tattoos sparked a flurry of queries regarding the legal ramifications of including replicas of tattoos in the video game, with freshly minted legal scholars concluding both that tattoos deserved copyright protection and that players fundamentally possessed autonomy over their own persons.7

The copyrightability of tattoos, however, does not just affect the booming video game market.8 The NFL continues to sign multi-billion dollar contracts to broadcast its games, which also display players' body art.9 Professional athletes and their tattoos pop up everywhere: magazines frequently feature players' barely clad bodies, and ESPN even dedicates an entire edition of its magazine to include images of unadorned athletes. …

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