In supporting this holding, Judge Swain found the pictures of the tattoos were distorted to a degree and were too small in scale to issue (a mere 4.4% to 10.96% of the size of the real things). Not only that, but just three from 400 players featured in the match had tattoos which were at controversy. For the court, that amount of replicating qualified as de minimis as opposed to substantial.
The court's finding that the use was de minimis could have been sufficient to dismiss the plaintiff's claims against the video game manufacturer. Yet, the court found that the producer needed 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 authority to reproduce a copyrighted work. It's generally understood that those who are tattooed like an implied consent from tattooists to permit the tattoos to be revealed in people and in photographs or films that feature the individual who's tattooed.
The reproductions at issue in this situation, however, were not real images of those athletes. Rather, the tattoos were found on virtual avatars made by artists that created realistic, but electronic, representations of the athletes and their tattoos.
In addressing this problem, Judge Swain recognized her higher ups in the Second Circuit Court of Appeals hadn't yet ruled on the precise definition of what qualifies as a"implied license"
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