In the copyright case over the use of images of real NBA players’ tattoos in the NBA 2K video game (see our prior coverage here), Judge Swain on Friday denied defendants’ motion for judgment on the pleadings. She concluded that more discovery was needed to determine whether the tattoos were such a “de minimis” part of the game as to fall outside the copyright laws, or whether the depiction of the tattoos was “fair use”:
To be substantially similar, the amount copied must be more than de minimis. . . .The Court finds that, with respect to the video game at issue, it is not possible to apply the qualitatively-focused “average lay observer” standard, or to make a quantitative determination,of the observability of [the plaintiff’s] copyrighted Tattoos, as the visibility and prominence of the Tattoos on screen are affected by countless possible game permutations that are dependent on individual players’ choices. . . . .
At this stage of the proceedings, there is no objective perspective as to how the Defendants’ video game is generally played, or to what extent certain game features can be or are actually utilized, that would allow this Court to make determinations about the choices and subsequent observations of the “average lay observer,” or about the observability and prominence of the Tattoos . . . .
The Court finds . . . for substantially the same reasons discussed above, Defendants’ claim of fair use of the Tattoos cannot be resolved at this stage of the proceedings. Because of the difficulties inherent in conducting a side-by-side comparison of the video game and the Tattoos, further evidence must be considered in connection with the fact-intensive question of the applicability of the fair use defense.