Breaking Down The Way MT 2K21 Producer Defended Its Rim Against Tattoo Copyright Claims

In the case, Solid Oak Sketches sought damages under the Copyright Act Take Two Interactive Software Inc. for featuring reproductions of the the purportedly copyright-protected tattoos on avatars for James, Martin and Bledsoe from the popular NBA 2K video games.

To best understand the significance of Judge Swain's decision, it's required to unpack every finding, beginning with the degree 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 the copy is substantially similar to the initial creation. To get a copy to qualify as much under the Copyright Act, the similarities between the works must be greater than de minimis (i.e. minuscule). Judge Swain found that the level of replicating in this case dropped under the brink of substantial copying. In reaching this decision, Judge Swain utilized the ordinary observer test, which requires the court to consider whether 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 within the match are substantially-similar to those featured on the bodies of their actual players. In supporting this holding, Judge Swain found the images of the tattoos were distorted to a degree and were too modest in scale to matter (a mere 4.4% to 10.96% of the size of the actual things). Not just that, but only three from 400 players featured in the game had tattoos which were at controversy. For the court, that quantity of replicating qualified as de minimis as opposed to Buy NBA 2K21 MT Coins substantial.