Tattoos are an obviously prevalent part of a football player’s image. For example, Ethan Westbrooks, the rookie defensive end for the St. Louis Rams, recently told ESPN that he decided to get his distinctive facial tattoo to help motivate him to make it in the NFL instead of pursuing a more normal career path. Whether due to his tattoo, which reads “laugh now, cry later,” or simply his talent, Westbrooks was ultimately successful; his first season with the Rams began Sunday, September 7 in their season opener against the Minnesota Vikings. However, Westbrooks is far from the only player with visible ink in the NFL. In fact, the growing popularity and visibility of these tattoos is raising intriguing questions about branding, intellectual property and the reproduction of these images.
When the most recent installation of the Madden NFL video game was released on Tuesday, August 26, many gamers likely noticed an exciting difference: Colin Kaepernick, the starting quarterback for the San Francisco 49ers, is realistically depicted with his famous tattoos, which he has previously displayed in a GQ photo spread and which have been the subject of a number of his previous interviews. However, Kaepernick was the only player who pursued the release of his tattoos from his artists, making him the only character depicted in the game with his real-life ink.
Cases like Kaepernick’s are becoming increasingly common: tattoo artists who work with athletes and other public figures are paying more attention to their rights, as their work becomes as famous as the person it belongs to. As intellectual property experts have explained, copyright law is typically very friendly to artists: while they cannot claim ownership of the body the ink is found on, any display of originality or creativity can stand as grounds for a copyright claim. As a result, tattoo artists have been able to successfully sue video game designers who attempted to use real tattoo designs in their games. In 2013, for example, artist Stephen Allen sued runningback Ricky Williams and Electric Arts for replicating his work in the video game NFL Street.
Unlike some players, however, Kaepernick has been vocal about the work of his tattoo artist, Nes Andrion, who created several of his more noteworthy pieces, resulting in a significant amount of business being directed to Andrion’s business, Endless Ink. While Andrion has stated that he has mixed feelings about waiving his rights to Kaepernick’s tattoos, he admits that working with the quarterback has been beneficial for his career as a whole. It is uncertain whether other artists will feel the same: in light of Kaepernick’s tattooed appearance in Madden NFL, which has dominated most of the news coverage about the game, many other players are likely to seek similar waivers to obtain the rights to their tattoos.
Formerly considered a distasteful choice, tattoos are now considered an integral part of America’s artistic heritage. Accordingly, nearly one in four Americans has at least one tattoo, a number that rises to one in three among 30 to 45 year olds. As this trend continues, one thing is certain: you can expect more ink in your video games.