On Thursday, the video game industry won a significant battle in a longstanding controversy over the reproduction of tattoos in sports video games. The situation involved a copyright action brought by Strong Oak Sketches Inc. to enforce exclusive rights obtained from NBA 2K21 MT Coins musicians that did tattoo work for LeBron James, Kenyon Martin and Eric Bledsoe.

To best understand the significance of Judge Swain's conclusion, it's required to unpack every finding, beginning with the degree of copying.

To maintain a copyright action, the plaintiff must include in their claims enough proof to demonstrate that the defendant copied their work and that the copy is much like the initial creation. To get a copy to be eligible as much under the Copyright Act, the similarities between the works have to be greater than de minimis (i.e. minuscule). Judge Swain discovered that the degree of replicating in this case fell under the brink of substantial copying. In reaching this conclusion, Judge Swain used the ordinary observer test, which requires the court to take into account if a lay person would recognize 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 those featured on the bodies of their real players. In encouraging that holding, Judge Swain found that the images of these tattoos were twisted to MT for sale 2K21 some extent and were too modest in scale to matter (a mere 4.4% to 10.96% of the magnitude of the actual things). Not only that, but only three from 400 players showcased in the game had tattoos that were at controversy. For the court, that quantity of copying qualified as de minimis rather than substantial.