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 breeding of tattoos in sports video games. The case involved a copyright action brought by Solid Oak Sketches Inc. to enforce exclusive rights acquired from artists that failed tattoo work for LeBron James, Kenyon Martin and Eric Bledsoe.

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

To sustain a copyright action, the plaintiff must include in their claims enough proof to demonstrate that the defendant copied their work and the copy is substantially similar to the original creation. For a copy to qualify as substantially similar under the Copyright Act, the similarities between the works have to be more than de minimis (i.e. minuscule). Judge Swain found that the level of replicating in this case fell below the threshold of large copying. In reaching this decision, Judge Swain utilized the ordinary observer test, which requires the court to think about 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 those featured on the bodies of the real players. In encouraging this holding, Judge Swain found that the images of the tattoos were distorted to some degree and were too modest in scale to issue (a mere 4.4percent to 10.96percent of the size of the real things). Not just that, but only 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 rather than substantial.

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