The court held that 2K21 MT no reasonable lay person could conclude that the tattoos featured in the match are substantially-similar to people featured on the bodies of the actual players. In encouraging this holding, Judge Swain discovered the pictures of the tattoos were twisted to some extent and were too modest in scale to issue (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 quantity 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. Yet, the court found that the producer had a non-exclusive implied license to reproduce the tattoos in its own NBA 2K video games. An implied license is one in which there is an implication that somebody has the ability to reproduce a copyrighted work. It's 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 individual who is tattooed. The reproductions at issue in this case, however, weren't actual images of those athletes. Rather, the tattoos have been found on virtual avatars created by artists who created realistic, but digital, representations of their athletes and their own tattoos.

In addressing this issue, Judge Swain realized her higher ups in the Second Circuit Court of Appeals hadn't yet ruled on the exact definition for what qualifies as an"implied license." Although, the Second Circuit had found that one party may grant to another a non-exclusive implied license that allows the latter to reproduce and distribute copyright protected work belonging to the former. Judge Swain looked to the signs and found that Cheap NBA 2K21 MT Coins the tattooists provided LeBron James and the other gamers with a non-exclusive signaled permit based on the intent for its celebrity athletes to produce the tattoos portion of the identities; that includes the reproduction of their images for all kinds of industrial functions.