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The case involved a copyright action brought on by Solid Oak Sketches Inc. to enforce exclusive rights acquired from musicians that failed tattoo work for LeBron James, Kenyon Martin and Eric Bledsoe. In the case, Solid 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 from the popular NBA 2K movie games.
From the decision, U.S. District Court Judge Laura Taylor Swain found that: (a) the level of copying of the tattoos had been de minimis instead of substantial, (b) the manufacturer had a non-exclusive implied license to reproduce the tattoos in the video games, and (c) the copies constituted"fair use" for their transformative nature. To best understand the significance of Judge Swain's conclusion, it's required to unpack every finding, starting with the degree of copying.
To maintain 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. For a copy to be eligible as much under the Copyright Act, the similarities between the works must be more than de minimis (i.e. minuscule). Judge Swain discovered that the level of replicating in this case dropped under the brink 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 that the breeding 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 people featured on the bodies of the real players. In encouraging that holding, Judge Swain discovered that the pictures of the tattoos were twisted to some extent and were too modest in scale to matter (a mere 4.4% to 10.96% of the magnitude of MT for sale 2K21 the actual things). Not just that, but only three from 400 players featured in the game had tattoos that were at controversy. For the court, that amount of copying qualified as de minimis rather than substantial.