The Players Had A Non-Exclusive Implied License

In supporting this holding, Judge Swain found the images of MT 2K22 these tattoos were distorted to a degree and were too modest in scale to matter (a mere 4.4% to 10.96percent of the magnitude of the actual things). Not only that, but only three from 400 players featured in the game had tattoos that were at controversy. For the courtroom, that amount of replicating qualified as de minimis rather than substantial.

Still, the court also found that the manufacturer needed a non-exclusive implied license to reproduce the tattoos in its NBA 2K video games. An implied license is one in which there is an implication that someone has the ability to reproduce a copyrighted work. 

It is generally understood that those that are tattooed enjoy an implied consent from tattooists to allow the tattoos to be revealed in public and in photographs or movies that feature the individual who's tattooed. 

The reproductions at issue in this case, however, were not real images of those athletes. Rather, the tattoos have been found on virtual avatars made by artists that made realistic, but digital, representations of the athletes and their tattoos.

In addressing this issue, Judge Swain recognized her higher ups in the Second Circuit Court of Appeals hadn't yet ruled on the precise 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 permits the latter to replicate and distribute copyright protected work belonging to Buy 2K22 MT the former.