In reaching this decision, Judge Swain utilized the ordinary observer test, which requires the court to consider if a lay person would understand the reproduction substantially copied and made use of the plaintiff's copyright protected work. 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 the real players. In encouraging this holding, Judge Swain found the pictures of these tattoos were twisted to a degree and were too small in scale to issue (a mere 4.4percent to 10.96percent of the size of the actual things). Not only that, but just 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 as opposed to substantial. The court's finding that the use was de minimis would have been sufficient to dismiss the plaintiff's claims against the video game manufacturer. Yet, the court found that the manufacturer needed a non-exclusive implied license to replicate the tattoos in its NBA 2K movie games. An implied license is one where there is an implication that somebody has the authority to reproduce a copyrighted work. It is generally understood that people who are tattooed enjoy an implied authorization from tattooists to allow the tattoos to be revealed in people and in photographs or movies that feature the person who is tattooed. The reproductions at issue in this case, however, were not actual images of those athletes. Rather, the tattoos were discovered on virtual avatars made by artists who made realistic, but digital, representations of their athletes and their tattoos. If you want to know more about NBA 2K, you can go to
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