Slimming Down How NBA 2K Producer Defended Its Rim Against Tattoo Copyright Claims

On Thursday, the video game industry won a significant battle in NBA 2K21 MT a longstanding controversy over the reproduction of tattoos in sports video games. The situation involved a copyright action brought on by Strong Oak Sketches Inc. to enforce exclusive rights obtained from musicians that did tattoo work for LeBron James, Kenyon Martin and Eric Bledsoe. In the case, Solid Oak Sketches sought damages under the Copyright Act from Take Two Interactive Software Inc. for containing reproductions of the the supposedly copyright-protected tattoos on avatars for James, Martin and Bledsoe in the favorite NBA 2K movie games.

In the conclusion, U.S. District Court Judge Laura Taylor Swain discovered that: (a) the level of copying of these tattoos was de minimis rather than large, (b) the manufacturer had a non-exclusive implied license to replicate the tattoos at the video games, and (c) the copies constituted"fair use" because of the transformative nature. To best understand the significance of Judge Swain's decision, it's necessary to unpack every finding, starting with the degree of copying.

To sustain a copyright act, the plaintiff must include in their claims sufficient evidence to show that the defendant copied their work and the copy is much like the initial production. To get a copy to qualify as much under the Copyright Act, the similarities between the works must be more than de minimis (i.e. minuscule). Judge Swain found that the degree of copying in this case fell under the brink of large copying. In reaching this decision, Judge Swain utilized the ordinary observer test, which requires the court to take into account if a lay person would recognize the breeding substantially copied and made use of the plaintiff's copyright protected function.

The court held that no reasonable lay person could conclude that the tattoos featured in the game are substantially-similar to those featured on the bodies of the real players. In supporting that holding, Judge Swain discovered the pictures of these tattoos were twisted to a degree and were too small in scale to matter (a mere 4.4% to 10.96% of the magnitude of the actual things). Not just that, but only three from Buy NBA 2K21 MT Coins 400 players showcased in the match had tattoos which were at controversy. For the courtroom, that quantity of copying qualified as de minimis rather than substantial.