From the conclusion, U.S. District Court Judge Laura Taylor Swain discovered that: (a) the level of copying of these tattoos had been de minimis rather than substantial, (b) the producer had a non-exclusive implied license to reproduce the tattoos in NBA 2K21 MT Coins the video games, and (c) the copies constituted"fair use" because of their transformative nature. To best understand the significance of Judge Swain's decision, it is necessary to unpack every finding, beginning with the degree of copying.

To sustain a copyright act, the plaintiff must include in their claims enough evidence to show that the defendant copied their work and that the copy is substantially similar to the initial creation. Judge Swain found that the degree of replicating in this case dropped below the threshold of substantial copying. In reaching this decision, Judge Swain used the ordinary observer test, which requires the court to take into account whether a lay person would understand the breeding substantially copied and forced use of the plaintiff's copyright protected function.

In encouraging that holding, Judge Swain discovered the images of the tattoos were distorted to a extent and were too small in scale to issue (a mere 4.4% to Cheap NBA 2K21 MT 10.96% of the size of the actual things). Not just that, but only three out of 400 players featured in the match had tattoos which were at controversy. For the court, that amount of copying qualified as de minimis as opposed to substantial.