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

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On Thursday, the video game industry won a significant battle in NBA 2K MT a longstanding controversy over the reproduction of tattoos in sports video games.

In the decision, U.S. District Court Judge Laura Taylor Swain found that: (a) the level of copying of the tattoos was de minimis rather than large, (b) the manufacturer had a non-exclusive implied license to reproduce the tattoos at the video games, and (c) the copies constituted"fair use" for their transformative nature. To best understand the significance of Judge Swain's decision, it is necessary to unpack every finding, starting with the degree of copying.

To maintain a copyright action, the plaintiff must include in their claims enough proof to demonstrate that the defendant copied their work and that the copy is much like the initial creation. Judge Swain found that the level of copying in this case fell below the threshold of substantial copying. In reaching this conclusion, Judge Swain used the ordinary observer test, which requires the court to take into account if a lay person would recognize that the reproduction substantially copied and forced use of the plaintiff's copyright protected work.

In encouraging this holding, Judge Swain found that the images of Buy 2K21 MT these tattoos were twisted to a degree and were too small in scale to matter (a mere 4.4percent to 10.96% of the size of the real things). Not only that, but only three from 400 players showcased in the game had tattoos which were at controversy. For the courtroom, that amount of copying qualified as de minimis as opposed to substantial.