To best understand the significance of Judge Swain's decision, it is required to MT 2K21 unpack each finding, starting with the level of copying.
To sustain a copyright action, the plaintiff must include in their asserts enough evidence to show that the defendant copied their work and that the copy is substantially similar to the original creation. To get a copy to be eligible as substantially similar under the Copyright Act, the similarities between the works must be greater than de minimis (i.e. minuscule). Judge Swain discovered that the degree of copying in this case fell under the brink of large copying. In reaching this conclusion, Judge Swain utilized the ordinary observer test, which requires the court to consider whether a lay person would understand the breeding substantially copied and forced use of the plaintiff's copyright protected work.
In supporting that holding, Judge Swain found that the pictures of these tattoos were twisted to some degree and were too small in scale to matter (a mere 4.4% to 10.96% of the magnitude of the real things). Not only that, but only three from 400 players showcased in the game had tattoos that were at controversy. For the court, that amount of replicating qualified as de minimis as opposed to substantial.
Yet, the court found that the producer needed a non-exclusive implied license to reproduce the tattoos in its NBA 2K video games. An implied license is one where there exists an implication that somebody has the ability to reproduce a copyrighted work. It's generally known that those who are tattooed love an estimated authorization from tattooists to permit the tattoos to be shown in people and in photos or films that feature the individual who is tattooed. The reproductions at issue in this case, however, were not real images of the athletes. Instead, the tattoos were discovered on virtual avatars made by artists who made realistic, but digital, representations of Buy 2K MT their athletes and their own tattoos.