Many players in the National Football League, most notably San Francisco 49ers quarterback Colin Kaepernick, are well known for their ink. The tattoos are so much a part of their persona that they are featured in images and likenesses of the players, including television advertisements and football video games.

As a result, the NFL Players Association is reportedly concerned that the tattoo artists responsible for the now-famous designs may bring copyright infringement lawsuits. It is encouraging players to seek releases from artists for past and future tattoo work.

The question of whether a tattoo can be subject to copyright is not novel. However, it has also not been definitely resolved by the courts.

In 2011, tattoo artist Victor Whitmill filed a copyright infringement lawsuit alleging that Warner Bros. illegally copied the tattoo he created on the face of boxer Mike Tyson. A similar tattoo was featured on the face of actor Ed Helms in the film, The Hangover: Part II.

According to his complaint, Whitmill registered the copyright, and Tyson signed a release acknowledging that the design was the property of Whitmill’s Paradox-Studio of Dermagraphics. After the judge presiding over the case suggested that Whitmill had a strong likelihood of success, the two sides settled for an undisclosed amount.

Accordingly, the case left a lot of questions unanswered regarding the treatment of tattoos under U.S. copyright law. While it seems unlikely that a tattoo would be ineligible for copyright protection simply because it is on a human being’s body rather than another medium, there are other issues to consider, including the doctrine of fair use.

It will be interesting to see how this issue plays out for the NFL. While some artists may be amenable to signing a release without compensation, others may see this as an opportunity to collect royalties for their work.

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– Ex astris, scientia –

I am and avid amateur astronomer and intellectual property attorney in Pasadena, California and I am a Rising Star as rated by Super Lawyers Magazine.  As a former Chief Petty Officer in the U.S. Navy, I am a proud member of the Armed Service Committee of the Los Angeles County Bar Association working to aid all active duty and veterans in our communities. Connect with me on Google +