On Thursday, the video game industry won a major battle in a longstanding controversy over the breeding of tattoos in sports video games. In the case, Strong Oak Sketches sought damages under the Copyright Act from Take Two Interactive Software Inc. for MT 2K21 containing reproductions of the the purportedly copyright-protected tattoos on avatars for James, Martin and Bledsoe from the favorite NBA 2K movie games.
To best understand the significance of Judge Swain's decision, it's required to unpack each finding, starting with the degree of copying.
To sustain a copyright action, the plaintiff must include in their claims enough evidence to show that the defendant copied their work and that the copy is much like the initial creation. To get a copy to be eligible as much under the Copyright Act, the similarities between the functions must be more than de minimis (i.e. minuscule). Judge Swain found that the degree of copying in this case dropped below the threshold of substantial copying. In reaching this conclusion, Judge Swain utilized the ordinary observer test, which requires the court to consider whether a lay person would understand that the breeding substantially copied and forced use of the plaintiff's copyright protected function.
The court held that no reasonable lay person could conclude that the tattoos featured in the game are substantially-similar to people featured on the bodies of the actual players. In encouraging that holding, Judge Swain discovered the pictures of the tattoos were twisted to a extent and were too modest in scale to matter (a mere 4.4percent to 10.96percent of the magnitude of the real things). Not just that, but just three out of 400 players featured in the match had tattoos which were at controversy. For the courtroom, that quantity of Buy 2K MT replicating qualified as de minimis rather than substantial.