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

On Thursday, the video game industry won a significant battle in a longstanding controversy over the reproduction of NBA MT Coins tattoos in sports video games. The case involved a copyright action brought on by Solid Oak Sketches Inc. to enforce exclusive rights obtained from musicians that failed tattoo work to get LeBron James, Kenyon Martin and Eric Bledsoe.

To best understand the importance of Judge Swain's decision, it is required to unpack each finding, beginning with the degree of copying.

To maintain a copyright action, the plaintiff must include in their asserts enough proof to demonstrate that the defendant copied their job and the copy is much like the initial creation. To get a copy to qualify as substantially similar under the Copyright Act, the similarities between the functions have to be more than de minimis (i.e. minuscule). Judge Swain found that the level of replicating in this case fell under the brink of substantial copying. In reaching this conclusion, Judge Swain utilized the ordinary observer test, which requires the court to take into account whether a lay person would recognize the reproduction substantially copied and forced 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 real players. In encouraging this holding, Judge Swain found that the pictures of the tattoos were twisted to a extent and were too small in scale to issue (a mere 4.4percent to 10.96percent of the size of the real things). Not only that, but just three out of 400 players featured in the match had tattoos which were at controversy. For the court, that quantity of copying qualified as de minimis as opposed to substantial.

The court's finding that the use was de minimis would have been sufficient to dismiss the plaintiff's claims against the video game manufacturer. Yet, the court found that the producer had a non-exclusive implied license to reproduce the tattoos in its own NBA 2K movie games. An implied license is one where there exists an implication that somebody has the authority to reproduce a copyrighted work. It is generally understood that those that are tattooed like an implied consent from tattooists to allow the tattoos to be shown in people and in photos or films that feature the individual who's tattooed. The reproductions at issue in this case, however, were not actual images of those athletes. Instead, the tattoos have been discovered on virtual avatars created by artists that made realistic, but electronic, representations of the athletes and their tattoos.

In addressing this issue, Judge Swain recognized that her higher ups in the Second Circuit Court of Appeals had not yet mastered the exact significance of what qualifies as an"implied license" Although, the Second Circuit had found that one party could grant to a different a non-exclusive implied license that permits the latter to reproduce and distribute copyright protected work belonging to the prior. Judge Swain looked to the signs and Buy NBA 2K21 MT found that the tattooists provided LeBron James and the other players with a non-exclusive signaled permit based on the purpose for the celebrity athletes to produce the tattoos portion of their identities; which comprises the reproduction of their images for all sorts of commercial purposes.