There are many athletes who have recognizable and distinctive tattoos, some of which are as famous as the athlete themselves, such as Mike Tyson’s face tattoo. So, when a digital version is made of the athletes for games, such as FIFA, WWE and Madden, it’s natural to assume they’ll be designed with their iconic artwork. However, it seems that copyright laws have gone to a whole new level. Several tattoo artists have sued game developers for using their artwork without permission, despite it being on someone else’s body, and in the eyes of the law, they’re allowed to copyright their tattoos and sue if the art is used without their permission.

Can your tattoo be copyrighted?

According to the United States Copyright Office, tattoos are considered an art form that is “fixed in a tangible medium”, therefore making it eligible for copyright by the artist. However, there is an implied license that means people can display their tattoos in public, such as on TV, social media or in print media. A copyright problem may occur if tattoos are recreated to make digital versions of athletes, as is the case with sports games. Tattoo artists have the right to copyright their ink and sue companies that use their work without their permission.

Leave the tattoos out

A simple solution for game creators to avoid having to pay to use artists work or risking a court case is to design in-game recreations of athletes without their tattoos, as Electronic Arts (EA) have done for many of the people depicted in their Madden games. One of the few characters in Madden to come complete with their tattoos is NFL star Mike Evans whose tattoo artist, Gotti Flores, happily signed a waiver, saying “it was dope to have my tattoos on there”. EA have taken this precaution following a previous copyright infringement lawsuit for their cover of NFL Street that showed Ricky Williams’ tattoos. Fortunately for them, the case was dropped in 2013. James LeBron has spoken out in support of game developers, saying, “My tattoos are part of my persona and identity. If I am not shown with my tattoos, it wouldn’t really be a depiction of me.”

Athletes and licensing agreements

So, is it down to athletes to get a licensing agreement from their tattoo artist? This would enable them to be recreated on computer games with their tattoos without the creators paying to use the artist’s work or risking being sued. Athletes are being encouraged to have artists sign waivers before any new tattoos, so that when they give permission for a game to use their image, it includes their tattoos. Alternatively, they can be digitalized without their tattoos, which may mean they don’t look like themselves, or they can be left out of games by designers. It’s important to point out that most artists will happily sign waivers, and many appreciate that their art will be displayed worldwide on some of the greatest athletes. A lot of artists will even be surprised that such an agreement is needed. In general, this can only be good for their reputation and business, but unfortunately, some artists do choose to sue game creators for copyright.

Sued for depicting tattoos

Take-Two Interactive, the game developer company responsible for hits like Grand Theft Auto, has had at least three lawsuits filed against them for their use of tattoos on digital athletes. Solid Oak Sketches were also sued in 2016 for using LeBron James’ portrait and area code tattoos in their NBA 2K series, and another artist sued for their use of his ‘Gloria’ tattoo. Wrestler Randy Orton’s tattoos were seen in WWE 2K, which also resulted in the artist suing. The outcome of these lawsuits will affect how game developers design digital athletes. Do they drop tattoos from their games or fork out a fortune to ensure a high-quality game that has an accurate likeness to the real-life athletes?

The effect on virtual sports

Virtual sports are computer-generated sporting events where the play and outcome are determined by algorithms, partly based on the skill of players and luck. Many people bet on them, just as you would a real-life sporting event, as they offer the opportunity to bet frequently. Virtual sports are growing in popularity, but they’re they’re likely to take a hit if any court cases against game developers succeed in stopping the use of tattoo artist’s work on digital versions of athletes.

It’s possible that developers could use virtual athletes based on real-life athletes that include their tattoos, but not use their name. This makes them recognizable to people and could get around the copyright laws.

Athletes give their permission for game developers to use their likeness and recreate them digitally, but it seems that the ink on their skin isn’t something they can give permission for. The majority of tattoo artists will happily sign a waiver to let their work be used legally in games, but for companies that recreate hundreds of tattoos per game, it’s not a risk they’ll be willing to take without the permission in place.