The Players Had A Non-Exclusive Implied License

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The Players Had A Non-Exclusive Implied License


From the NBA 2K21 MT Coins conclusion, U.S. District Court Judge Laura Taylor Swain found that: (a) the degree of copying of these tattoos had been de minimis instead of substantial, (b) the producer had a non-exclusive implied license to replicate the tattoos in the video games, and (c) the copies constituted"fair use" because of their transformative nature. To best understand the importance of Judge Swain's conclusion, it's necessary to unpack each finding, starting with the level of copying.

To sustain a copyright action, the plaintiff must include in their claims sufficient proof to show that the defendant copied their work and the copy is much like the original creation. For a copy to qualify as much under the Copyright Act, the similarities between the works must be greater than de minimis (i.e. minuscule). Judge Swain found that the level of copying in this case fell below the threshold of large copying. In reaching this conclusion, Judge Swain utilized the ordinary observer test, which requires the court to consider if a lay person would recognize the reproduction 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 within the game are substantially-similar to people featured on the bodies of their actual players. In supporting this holding, Judge Swain found that the pictures of these tattoos were twisted to some extent and were too modest in scale to matter (a mere 4.4% to 10.96% of the size of the real things). Not only that, but only three out of 400 players showcased Buy NBA 2K21 MT in the match had tattoos which were at controversy. For the court, that quantity of copying qualified as de minimis rather than substantial.

 

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