The court held that no reasonable lay person could conclude that the tattoos featured within the match are substantially-similar to people featured on the bodies of their real players. In supporting that holding, Judge Swain discovered that the pictures of the tattoos were distorted to a extent and were too modest in scale to matter (a mere 4.4percent to 10.96% of the size of the real things). Not only that, but only three from 400 players showcased in the game had tattoos which were at controversy. For the court, that amount of replicating qualified as de minimis rather than substantial.
The court's finding that the use was de minimis would have been enough to dismiss the plaintiff's claims against the video game manufacturer. Still, the court found that the manufacturer had a non-exclusive implied license to replicate the tattoos in its own NBA 2K movie games. An implied license is one in which there exists an implication that someone has the ability to reproduce a copyrighted work. It is generally understood that those who are tattooed enjoy an implied authorization from tattooists to permit the tattoos to be shown in people and in photographs or movies that feature the person who is tattooed. The reproductions at issue in this case, however, were not real images of the athletes. Instead, the tattoos were found on virtual avatars made by artists who made realistic, but digital, representations of their athletes and their tattoos.
In fixing this problem, Judge Swain recognized that her high ups in the Second Circuit Court of Appeals hadn't yet ruled on the precise definition of what qualifies as an"implied license." Although, the Second Circuit had found that one party could grant into a different a non-exclusive implied license which allows the latter to replicate and distribute copyright protected work belonging to the prior. Judge Swain looked to the evidence and found that the tattooists supplied LeBron James and the other gamers with a non-exclusive signaled permit depending on the purpose for the celebrity athletes to make the tattoos portion of their identities; that comprises the reproduction of the images for all sorts of industrial functions.