August 26, 2014

Do You Have a License for that "Roll Tide" Tattoo?- Madden 15 Raises Questions

by Guest Blogger

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Kapernick In Madden 15

Colin Kaepernick, first Tattooed-American to be faithfully rendered in a video game, via EA Sports[/caption]

Today is a monumental day for us Tattooed-Americans. At midnight, EA Sports released Madden 15, and for the first time the game will faithfully render a player's tattoos. This seems to be a natural progression, given how realistic video games have become. However, the barriers to depicting player tattoos in previous versions of the game were not technological, but legal.

You may remember that the release of The Hangover: Part II was nearly delayed due to a lawsuit filed by the artist who designed and inked Mike Tyson's face tattoo. The tattoo artist claimed that the rendering of a nearly identical tattoo on Ed Helm's face in the second installment of the franchise constituted a copyright violation. The case was settled.

Later, another tattoo artist sued video game manufacturer THQ for faithfully rendering the prominent lion tattoo of MMA fighter Carlos Condit in a video game. THQ filed bankruptcy, and the case was dismissed.

While the law regarding the rights of tattoo artists in these situations is unclear due to the dispositions of these cases, the potential for disputes has made folks a little squeamish about reproducing tattoos in other media. Fearing another suit, EA Sports did not feature Condit's lion tattoo in its UFC video game. Moreover, the NFL Players Association advises players to get full intellectual property rights in their tattoos and may require a player to indemnify the NFLPA for any problems arising from intellectual property related to their tattoos. For Madden 15, Colin Kaepernick obtained the rights to his tattoos from the artists, allowing him to be the first Madden 15 player with fully rendered tattoos.

Clearly, companies have developed respect for the intellectual property issues surrounding the rendering of tattoos and are concerned about potential lawsuits from tattoo artists. But, have tattoo artists done the same when reproducing the intellectual property of other companies? More specifically, can a tattoo artist be sued by a company for selling a tattoo that includes a company's trademark?

For instance, here in the South, we love the SEC. And as everyone knows, when you love something you permanently etch it into your skin. So down here you see a lot of tattoos featuring trademarks of SEC teams.

While it seems pretty clear that merely having a "Roll Tide" tattoo is fine (it's not being used in commerce), I think there is an argument that an artist that sells a tattoo bearing a trademark may be exposed to liability. While there are a million other issues (goods and services, etc.) that may impact liability, I don't think it is really all that different than selling a "Roll Tide" t-shirt.

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Roll Tide2

The University of Alabama's "Roll Tide" trademark (top) has been tattooed on this nice young man's biceps (below, via[/caption]

Given the quality of some of these tattoos, there is probably a dilution or disparagement argument, as well.

So, when you set down your beer at 3:00 am and climb into the chair in the tattoo parlor, make sure to carefully review the artist's license agreements for any trademarks incorporated into your tattoo and remember to secure full rights in the copyright on your way out the door. This will prevent you from having to pay royalties to multiple people every time you wear a tank top.

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