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The situation involved a copyright action brought on by Strong Oak Sketches Inc. to enforce exclusive rights acquired from musicians who did tattoo work for LeBron James, Kenyon Martin and Eric Bledsoe. In the case, Strong Oak Sketches sought damages under the Copyright Act Take Two Interactive Software Inc. for featuring reproductions of their purportedly copyright-protected tattoos on avatars for James, Martin and Bledsoe in the popular NBA 2K video games.
In the conclusion, U.S. District Court Judge Laura Taylor Swain discovered that: (a) the degree of copying of the tattoos had been de minimis instead of large, (b) the producer needed a non-exclusive implied license to reproduce the tattoos in the video games, and (c) the copies constituted"fair use" because of the transformative nature. To best understand the significance of Judge Swain's decision, it's necessary to unpack every finding, beginning with the level of copying.
To maintain a copyright act, 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. Judge Swain found that the degree of replicating 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 consider if a lay person would understand the breeding substantially copied and forced use of the plaintiff's copyright protected function.
In encouraging this holding, Judge Swain found that the images of these tattoos were distorted to a degree and were too modest in scale to matter (a mere 4.4percent to 10.96% of the size of the real things). Not only that, but just three out of Cheap MT NBA 2K21 400 players featured in the match had tattoos that were at controversy. For the courtroom, that quantity of copying qualified as de minimis as opposed to substantial.