The court held that no reasonable lay person could conclude

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To sustain a MT 2K21 copyright action, the plaintiff must include in their claims enough proof to show that the defendant copied their work and the copy is much like the original creation. Judge Swain discovered that the level of copying in this case fell below the threshold of large copying. In reaching this conclusion, Judge Swain used the ordinary observer test, which requires the court to consider whether a lay person would recognize that the breeding substantially copied and made use of the plaintiff's copyright protected function.

The court held that no reasonable lay person could conclude that the tattoos featured within the game are substantially-similar to people featured on the bodies of the real players. In supporting that holding, Judge Swain discovered that the pictures of these tattoos were distorted to some extent and were too small in scale to matter (a mere 4.4% to 10.96% of the magnitude of the actual things). Not just that, but only three from 400 players featured in the game had tattoos which were at controversy. For the court, that quantity of replicating qualified as de minimis rather than substantial.

Yet, the court found that the manufacturer needed a non-exclusive implied license to replicate the tattoos in its own NBA 2K movie games. An implied license is one where there exists an implication that someone has the authority to reproduce a copyrighted work. It's generally understood that those that are tattooed enjoy an estimated consent from tattooists to permit the tattoos to be shown in people and in photographs or films that feature the person who's tattooed. The reproductions at issue in this case, however, weren't actual images of those athletes. Instead, the tattoos have been found on virtual avatars Buy NBA 2K21 MT Coins made by artists who made realistic, however electronic, representations of the athletes and their tattoos.