On Thursday, the video game industry won a major battle in a longstanding controversy over the breeding of tattoos in sports video games. The case involved a copyright action brought by Solid Oak Sketches Inc. to enforce exclusive rights obtained from musicians who did tattoo work for NBA 2K21 MT LeBron James, Kenyon Martin and Eric Bledsoe. In the case, Strong Oak Sketches sought damages under the Copyright Act from Take Two Interactive Software Inc. for containing reproductions of their purportedly copyright-protected tattoos on avatars for James, Martin and Bledsoe in the favorite NBA 2K movie games.
To best understand the importance of Judge Swain's conclusion, it is necessary to unpack every finding, beginning with the level of copying.
To maintain a copyright act, the plaintiff must include in their claims enough evidence to demonstrate that the defendant copied their job and the copy is much like the original creation. Judge Swain found that the level of copying in this case dropped 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 understand that the reproduction substantially copied and made use of the plaintiff's copyright protected work.
The court held that no reasonable lay person could conclude that the tattoos featured within the match are substantially-similar to people featured on the bodies of the actual players. In supporting this holding, Judge Swain found that the images of these tattoos were distorted to a extent and were too modest in scale to matter (a mere 4.4percent to 10.96percent of the size of the real things). Not only that, but only three out of 400 players featured in the game had tattoos that were at controversy. For the courtroom, that quantity of replicating qualified as de minimis rather than substantial.
Yet, the court also found that the manufacturer needed a non-exclusive implied license to replicate the tattoos in its own NBA 2K movie games. An implied license is one in which there is an implication that somebody has the authority to reproduce a copyrighted work. It is generally understood that those that are tattooed enjoy an implied consent from tattooists to allow the tattoos to be shown in public and in photos or movies that feature the person who is tattooed. The reproductions at issue in this case, however, were not real images of MT for sale 2K21 the athletes. Rather, the tattoos have been discovered on virtual avatars made by artists that made realistic, but electronic, representations of their athletes and their tattoos.