In the conclusion, U.S. District Court Judge Laura Taylor Swain discovered that: (a) the level of copying of the tattoos had been de minimis rather than substantial, (b) the producer had a non-exclusive implied license to reproduce the tattoos in the video games, and (c) the copies constituted"fair use" for their transformative nature. To best understand the importance of Judge Swain's decision, it is necessary to unpack every finding, starting with the level of copying.

To maintain a copyright action, the plaintiff must include in their claims enough evidence to demonstrate that the defendant copied their work and that the copy is much like the initial creation. Judge Swain found that the degree of replicating in this case dropped under the brink of large copying. In reaching this conclusion, Judge Swain used the ordinary observer test, which requires the court to consider if a lay person would understand that the reproduction substantially copied and forced use of the plaintiff's copyright protected work.

The court held that no reasonable lay person may conclude that the tattoos featured within the game are substantially-similar to people featured on the bodies of the real players. In supporting this holding, Judge Swain found the pictures of these tattoos were distorted to some degree and were too modest in scale to issue (a mere 4.4% to 10.96percent of the size of the real 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 amount of replicating qualified as de minimis as opposed to substantial.

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