District Court Judge Laura Taylor Swain found

From the NBA 2K21 MT Coins conclusion, U.S. District Court Judge Laura Taylor Swain found that: (a) the level of copying of the tattoos was de minimis rather than large, (b) the producer had a non-exclusive implied license to replicate the tattoos at the video games, and (c) the copies constituted"fair use" because of their transformative nature. To best understand the significance of Judge Swain's decision, it is necessary to unpack every finding, starting with the degree of copying.

To sustain a copyright action, the plaintiff must include in their asserts enough proof to show that the defendant copied their work and the copy is much like the original creation. To get a copy to qualify as substantially similar under the Copyright Act, the similarities between the functions must be more than de minimis (i.e. minuscule). Judge Swain found that the degree of copying in this case fell below the threshold of substantial copying. In reaching this decision, Judge Swain utilized the ordinary observer test, which requires the court to consider whether a lay person would recognize the breeding substantially copied and made use of the plaintiff's copyright protected function. In supporting that holding, Judge Swain found that the pictures of these tattoos were distorted to some 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 only three out of 400 players featured in the match had tattoos which were at controversy. For the courtroom, that quantity of copying qualified as de minimis rather than substantial. Still, the court found that the producer needed a non-exclusive implied license to reproduce the tattoos in its own NBA 2K movie games. An implied license is one in which there exists an implication that somebody has the authority to reproduce a copyrighted work. It is generally understood that those that are tattooed like an implied consent from tattooists to allow the tattoos to be shown in people and in photos or films that feature the individual who's tattooed. The reproductions at issue in this situation, however, were not actual images of those athletes. Instead, the tattoos have been found on virtual avatars made by artists who made realistic, but electronic, representations of their athletes and their tattoos.

In fixing this issue, Judge Swain recognized that her higher ups from the Second Circuit Court of Appeals had not yet ruled on the precise definition for what qualifies as a"implied license." Although, the Second Circuit had found that one party may grant to another a non-exclusive indicated license which allows the latter to reproduce and distribute copyright protected work belonging to the former. Judge Swain looked to the signs and found that the tattooists provided LeBron James and the other gamers using a non-exclusive implied license depending on the purpose for its star athletes to make the tattoos part of the identities; which comprises the reproduction of their images for all sorts of industrial Buy NBA 2K MT purposes.