Washington and Lee Law Review Volume 72 | Issue 4 Article 7 Fall 9-1-2015 The lP ayer, the Video Game, and the Tattoo Artist: Who Has the Most Skin in the Game? Jennifer L. Commander Washington and Lee University School of Law Follow this and additional works at: https://scholarlycommons.law.wlu.edu/wlulr Part of the Intellectual Property Law Commons Recommended Citation Jennifer L. Commander, The Player, the Video Game, and the Tattoo Artist: Who Has the Most Skin in the Game?, 72 Wash. & Lee L. Rev. 1947 (2015), https://scholarlycommons.law.wlu.edu/wlulr/ vol72/iss4/7 This Note is brought to you for free and open access by the Washington and Lee Law Review at Washington & Lee University School of Law Scholarly Commons. It has been accepted for inclusion in Washington and Lee Law Review by an authorized editor of Washington & Lee University School of Law Scholarly Commons. For more information, please contact [email protected]. The Player, the Video Game, and the Tattoo Artist: Who Has the Most Skin in the Game? Jennifer L. Commander∗ 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 ∗ Candidate for J.D., May 2016, Washington and Lee University School of Law. I thank the ever-insightful program “All Things Considered” on National Public Radio for introducing me to this topic. I extend my deepest gratitude to Professor Sally Wiant for her knowledgeable contributions to this Note regarding Copyright Law, her shaping of my legal writing, and her mentorship and friendship throughout my law school career. I thank my family for their genuine interest and support, not only during this process, but also in all my endeavors. I dedicate this Note to my husband, Keith Gray, whose encouragement and steadfastness made it possible. 1947 1948 72 WASH. & LEE L. REV. 1947 (2015) 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 1. See Becky Sullivan, For the First Time, Real Tattoos Make Their Madden Debut, NPR (Aug. 24, 2014, 6:27 PM), http://www.npr.org/2014/ 08/24/342959404/for-the-first-time-real-tattoos-make-their-madden-debut (last visited Nov. 6, 2015) (noting the release of the newest installment of the Madden series) (on file with the Washington and Lee Law Review). 2. See id. (recounting the enormous success of the Madden series and its shift towards increasingly realistic depictions of NFL players); see also Nick Bilton, Video Game Industry Continues Major Growth, Gartner Says, N.Y. TIMES (July 5, 2011, 6:55 PM), http://bits.blogs.nytimes.com/2011/07/05/video-game- industry-continues-major-growth-gartner-says (last visited Nov. 6, 2015) (emphasizing the video game industry boom that continues to this day, making the video game industry an important player in legal issues) (on file with the Washington and Lee Law Review). 3. See Samit Sarkar, Why Tattoos Are Just Now Returning to Madden with Madden NFL 15, POLYGON (June 5, 2014, 3:00 PM), http://www.polygon. com/2014/6/5/5782540/madden-nfl-15-tattoos-returning-colin-kaepernick (last WHO HAS THE MOST SKIN IN THE GAME? 1949 During an interview with Polygon, Madden NFL’s line producer4 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 visited Nov. 6, 2015) (explaining why Madden has not previously included players’ tattoos and how it plans to proceed in securing the necessary licensing to include more players’ ink in future Madden games) (on file with the Washington and Lee Law Review). 4. See Brett McKay & Kate McKay, So You Want My Job: Video Game Producer, ART OF MANLINESS (Sept. 29, 2010), http://www.artofmanliness.com/ 2010/09/29/so-you-want-my-job-video-game-producer/ (last visited Nov. 6, 2015) (describing the tasks of a video game line producer, which include overseeing development of a game) (on file with the Washington and Lee Law Review). 5. See Sarkar, supra note 3 (citing Sean Graddy as saying, “It really comes down to a piece of art asset here that could be [copyrighted], frankly, as we’ve learned over time”). 6. See id. (describing how Kaepernick first secured permission from his tattoo artists before Madden would consider including his tattoos in the newly released game); see also Darren A. Heitner & Alan Wilmot, Score a Touchdown, Kiss Your Tattoo, and Get Sued for Copyright Infringement?, 21 JEFFREY S. MOORAD SPORTS L.J. 299, 318–19 (2014) (recounting how an account management representative at a sports agency company spent thousands of hours researching and cold-calling to obtain partnerships with LeBron James and Kobe Bryant’s tattoo artists so he could use their tattoos on merchandise); Joseph Milord, Colin Kaepernick Will Be the Only Player in Madden 15 with Tattoos, ELITE DAILY (June 6, 2014, 10:46 AM), http://elitedaily.com/sports/colin- kaepernick-will-be-the-only-player-in-madden-15-with-tattoos/622374/ (last visited Jan. 5, 2015) (identifying Kaepernick as the only player whose animated avatar will include his own tattoos) (on file with the Washington and Lee Law Review). 7. See, e.g., Kal Raustiala & Christopher Sprigman, Whose Tattoo Is It Anyway?, L.A. TIMES (Oct. 6, 2013), http://www.latimes.com/opinion/op-ed/la-oe- raustiala-tattoo-copyright-20131006-story.html (last visited Nov. 5, 2015) (opining on the question “who owns a tattoo?” and recognizing the conflicting rights of athletes and tattoo artists) (on file with the Washington and Lee Law Review). 1950 72 WASH. & LEE L. REV. 1947 (2015) 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.10 Television networks, magazine publishers, and video game creators all need answers regarding their legal exposure when it comes to featuring athletes’ tattoos, but not a single court has addressed the issue head-on.11 This Note examines the limited and uncertain cases and scholarship discussing tattoos and concludes that the current precedent provides insufficient guidance in applying copyright protection to tattoos. It addresses this lack of supervision by analyzing the existing scholarship suggestions that justify copyright protection for tattoos and subsequently