You'd think with all the threats facing the NFL and American football, such as Twitter-spoliers on draft picks and the impending SkyNET takeover, the powers that be in America's most-watched game wouldn't have time to deal with more minor threats from non-sentient-destructo-machines, but here's the stupidity of copyright on tattoos to prove me wrong yet again. You may recall that former athlete/tattoo issues have included Mike Tyson's face being visible in The Hangover 2, as well as UFC fighter Carlos Condit being depicted accurately in a THQ game.
Well, this nonsense hasn't gone unnoticed, and the NFL Players Association has taken a firm stance that it will run the hell away from any licensing issues that arise from their members' tattoos being depicted in any form of media. Featured prominently in Forbes' analysis of the issue is Colin Kaepernick, quarterback of the 49ers and a man that has done more to combine ink and flesh than an all-squid orgy.
The question is no longer whether the tattoos that cover Kaepernick's body will detract from his brand; the fear is that it could lead to future liability not only for the signal-caller, but for all other NFL players who are inked up. The ink issue is over who owns the copyright to the images depicted by the tattoos emblazoned on athletes' bodies. According to sources speaking to FORBES on condition of anonymity, the issue of copyright ownership concerning tattoos on football players has very recently been labeled as a pressing issue by the NFL Players Association. One source said, “I don't blame [the NFLPA], but they should have been on top of it earlier. It was something that was mentioned at the NFL Combine — that was the first I had ever heard them mention anything on the issue of tattoos. They advised agents to tell their players that when they get tattoos going forward they should get a release from the tattoo artist and if they can track down their former artists, they should get a release.”
And if they don't, or can't, get said release? Well, the NFLPA is then going to require that players agree to release the NFLPA from all litigation claims. Not only that, but likewise the NFLPA will seek to “indemnify and hold harmless” any of its licensees as well, such as EA Sports' Madden NFL franchise.
And that's really the shame of the story, because there's a potentially really interesting legal case to be fought here, and if anyone had the financial resources to push things along that far, it'd be the large group of millionaires that make up the NFL Players Association. Instead of pressing the issue, NFL players are instead left holding the liability bag, wondering whether or not they can make money off of their own freaking image, which is the kind of question that would convince me personally that I must be trapped in some 7th circle of the stupidest Hell imaginable. It's especially silly since, as Forbes notes, it's not remotely clear that gaming and media companies wouldn't be in the clear to use these depictions anyway.
Defenses based on fair use and that the tattoo has become a part of the recipient's persona for the purpose of the recipient being able to effectively license his likeness may be applicable. It is difficult to fathom that those responsible for drafting the Copyright Act intended to legally prohibit individuals adorned with tattoos from making public appearances or endorsing products without covering up their ink. But nobody wants to take the risk of appealing to the spirit of the law.
On top of that, you'd think that the players themselves, and the organization that represents them, would be interested in fighting back against any copyright claim, not just because of the monetary liability but because of
Section 503, which notes that one of the remedies for infringement is that the court can order that the infringing product may be "destroyed." And while fans of, say, the Seattle Seahawks, might like the idea that Colin Kaepernick's arms may need to be "destroyed," that seems like something that the Players' Association might want to take a stand on.
Stated more honestly, this is yet another example of how copyright has gone so far and above its intent as to be unrecognizable by those that put it in place. And nobody wants to fight the fight, which means we'll likely either get a tidal wave of stupid lawsuits over tattoos or less-accurately depicted athletes in games and media. Way to go, copyright.
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