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

On Thursday, the video game industry won a major battle in a longstanding controversy over the reproduction of tattoos in sports video games. In the case, Solid Oak Sketches sought damages under the Copyright Act Take Two Interactive Software Inc. for NBA 2K Coins containing reproductions of the the purportedly copyright-protected tattoos on avatars for James, Martin and Bledsoe from the favorite NBA 2K movie games.

From the conclusion, U.S. District Court Judge Laura Taylor Swain discovered that: (a) the level of copying of these tattoos had been de minimis rather than substantial, (b) the producer needed a non-exclusive implied license to reproduce the tattoos in the video games, and (c) the copies constituted"fair use" because of the transformative nature. To best understand the significance of Judge Swain's conclusion, it is required to unpack every finding, beginning with the level of copying.

To sustain a copyright action, the plaintiff must include in their asserts enough proof to show that the defendant copied their work and that the copy is substantially similar to the original creation. Judge Swain discovered that the level of copying in this case fell below the threshold of substantial copying. In reaching this conclusion, Judge Swain utilized the ordinary observer test, which requires the court to think about whether a lay person would understand that the breeding substantially copied and forced use of the plaintiff's copyright protected function.

In encouraging that holding, Judge Swain found that the images of the tattoos were distorted to a degree and were too modest in scale to issue (a mere 4.4% to 10.96% of Buy NBA 2K21 MT the size of the real things). Not only that, but just three out of 400 players showcased in the game had tattoos which were at controversy. For the court, that amount of copying qualified as de minimis as opposed to substantial.