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The question is, did he do it on purpose?
I know quite a few artists who make book covers. Sometimes they simply use a weapon, vehicle, clothing, etc from a certain game or film as a "cupholder". Usually till they can come up with their own design.
Perhaps the artist simply used the battle rifle as a reference, but had trouble coming up with his own design. When he later on sent the design to the publisher to show them what he had come up with, the publisher could simply have accepted it as the main art.
So, a simple mistake, or the artist is thief. If MS wants to they can give him hell anyway.