Slimming 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 reproduction of tattoos in sports video games. In the case, Solid Oak Sketches sought damages under the Copyright Act from Take Two Interactive Software Inc. for containing reproductions of their supposedly copyright-protected tattoos on avatars for James, Martin and Bledsoe in the favorite NBA 2K video games.

To best understand the importance of Judge Swain’s decision, it’s necessary to unpack every finding, beginning with the degree of copying.

To maintain a copyright act, the plaintiff must include in their claims enough proof to show that the defendant copied their work and that the copy is substantially similar to the original creation. Judge Swain found that the degree of replicating in this case fell under the brink of large copying. In reaching this decision, Judge Swain used the ordinary observer test, which requires the court to consider if a lay person would recognize that the breeding substantially copied and made use of the plaintiff’s copyright protected work.

In supporting this holding, Judge Swain discovered the pictures of these tattoos were distorted to a degree and were too modest in scale to issue (a mere 4.4% to 10.96% of the size of the real things). Not just 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.

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