Judge Swain found that the level of mt 2k22 replicating in this case dropped under the brink of substantial copying. In reaching this conclusion, Judge Swain utilized the ordinary observer test, which requires the court to consider whether a lay person would recognize that the reproduction substantially copied and forced use of the plaintiff's copyright protected work.

The court stated that no reasonable lay person could conclude that the tattoos featured in the match are substantially-similar to people featured on the bodies of their actual players. In supporting this holding, Judge Swain discovered that the images of these tattoos were twisted to a degree and were too modest in scale to issue (a mere 4.4percent to 10.96% of the size of the actual things). Not only that, but just three out of 400 players featured in the game had tattoos which were at controversy. For the courtroom, 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 enough to dismiss the plaintiff's claims against the video game manufacturer. Yet, the court found that the manufacturer had a non-exclusive implied license to replicate the tattoos in its own NBA 2K video games. An implied license is one where there is an implication that somebody has the authority to reproduce a copyrighted work. 

It's generally understood that people that are tattooed like an implied consent from tattooists to allow the tattoos to be revealed in people and in photographs or movies that feature the person who's tattooed. The reproductions at issue in this situation, however, weren't actual images of the athletes. Instead, the tattoos were discovered on virtual avatars created by artists who created realistic, but electronic, representations of the athletes and their tattoos.

In addressing this issue, Judge Swain realized her higher ups at the Second Circuit Court of Appeals had not yet ruled on the precise definition of what qualifies as an"implied license." Although, the Second Circuit had previously found that one party may give to another a non-exclusive indicated license that permits the latter to reproduce and distribute copyright protected work belonging to buy Nba 2k22 Mt the prior.