Contract analysis

I. INTRODUCTION Plaintiff Luminos Interactive LLC's Opposition to Defendant Redstone Gaming Corp.'s Motion for Summary Judgment, filed September 23, 2024, fails to identify any genuine dispute of material fact that would preclude summary judgment under Federal Rule of Civil Procedure 56. Despite twenty-eight pages of argument, Luminos has not demonstrated the existence of a single triable issue warranting submission

II. ARGUMENT A. Luminos Has Failed to Demonstrate a Genuine Dispute of Material Fact Regarding Independent Creation The central premise of Luminos's copyright infringement claim is that Redstone copied visual assets from Shardfall Chronicles when developing Ironclad Dominion. The undisputed record evidence forecloses this theory entirely. Redstone independently created the challenged assets, and Luminos's Opposition

1. The Ironclad-Main Repository Evidence Is Uncontested. Redstone's opening brief and the supporting declaration of Nathan Rourke of Brindoval Forensic Consulting LLC established that the "ironclad-main" Git repository — the primary code and asset repository for the Ironclad Dominion project — contains 14,208 individual commits spanning the period from February 12, 2020, through October 2022. (Rourke Decl. ¶¶ 8–14, E

2. Luminos's "Striking Similarity" Argument Does Not Create a Triable Issue. Unable to demonstrate access through direct evidence, Luminos falls back on the doctrine of "striking similarity," arguing that the similarities between the 37 challenged assets are so pronounced that copying can be inferred even without proof of access. (Opp. at 14–16.) This argument collapses under the weight of the undisputed evidence. Th

1. Dr. Yates's Methodology Is Fundamentally Flawed. Dr. Lautner's rebuttal report, served on September 3, 2024, identified four critical deficiencies in Dr. Yates's pixel-level comparison methodology that independently render his similarity scores unreliable. (Lautner Rebuttal Report ¶¶ 33–58.) Luminos's Opposition does not meaningfully address any of these deficiencies. Non-Standard Color-Space Normalization. Dr. Ya

2. Dr. Yates's Conclusions Do Not Withstand Scrutiny Under *Daubert*. Even accepting Dr. Yates's methodology arguendo — and Redstone emphatically does not — his conclusions do not create a genuine dispute of material fact because they address only superficial visual resemblance without accounting for the scènes à faire doctrine or distinguishing between protectable and unprotectable elements. Under Daubert v. Merrell

1. Factor One: Purpose and Character of the Use — Highly Transformative. Luminos's Opposition concedes — as it must — that Ironclad Dominion is a "different type of game" from Shardfall Chronicles. (Opp. at 17 ("Luminos does not dispute that the games differ in certain respects, including multiplayer functionality and visual theme.").) Yet Luminos contends that the commercial purpose of Ironclad Dominion undermines a

2. Factor Two: Nature of the Copyrighted Work. Redstone acknowledged in its opening brief that Shardfall Chronicles is a creative work and that this factor weighs slightly in Luminos's favor. (Opening Br. at 22–23.) Redstone does not retreat from that concession. The second fair-use factor typically favors the copyright holder when the copyrighted work is creative rather than factual in nature. See Stewart v. Abend,

3. Factor Three: Amount and Substantiality of the Portion Used — De Minimis. Luminos argues that the 37 challenged assets represent "the heart" of Shardfall Chronicles, invoking the principle articulated in Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 565 (1985), that a use may be qualitatively excessive even if quantitatively small. (Opp. at 22–24.) This argument is unsupported by record eviden

4. Factor Four: Effect on the Market — No Market Harm Demonstrated. The fourth fair-use factor — the effect of the use upon the potential market for or value of the copyrighted work — is "undoubtedly the single most important element of fair use." Harper & Row, 471 U.S. at 566. Luminos's Opposition fails to rebut the central finding of Dr. Sandra Chu's rebuttal damages report, prepared by Evergreen Valuation Group LL

1. Cases Involving Wholesale Copying Are Inapposite. Throughout its Opposition, Hargrove, Tanaka & Whitmore LLP cites a series of cases involving near-identical reproduction of entire works or substantial portions thereof, suggesting that those decisions compel denial of summary judgment here. (Opp. at 6–8, 14–15, 25.) They do not. Each of the cases Luminos relies upon is factually and legally distinguishable from th

2. The Scènes à Faire Doctrine Precludes Infringement as to the Generic Fantasy Elements. Even if the Court were to find some degree of similarity between the 37 challenged assets and their Shardfall Chronicles counterparts, the scènes à faire doctrine independently precludes a finding of infringement as to those elements. Under the scènes à faire doctrine, copyright protection does not extend to "expressions that ar

1. Independent Creation Timeline. Development of Ironclad Dominion commenced in the first quarter of 2020, with the first commit in the ironclad-main Git repository dated February 12, 2020. This is more than thirteen months before Shardfall Chronicles was released on March 22, 2021. (Rourke Decl. ¶¶ 8–14; Kessler Dep. Tr. at 47:3–49:18.)

2. Repository Integrity. Brindoval Forensic Consulting LLC verified 14,208 commits and their timestamps through cryptographic hash-chain analysis, confirming the integrity of the repository and the creation timeline for every challenged asset. This evidence is uncontested. (Rourke Decl. ¶¶ 11–14.)

3. Minimal Similarity. Only 4 of the 37 challenged assets exceed a 40% similarity index under rigorous pixel-level comparison. No asset exceeds a 52% similarity index. The remaining 33 assets (89%) fall below the 40% threshold and reflect generic fantasy-RPG design conventions. (Lautner Expert Report ¶¶ 28–45; Lautner Rebuttal Report ¶¶ 18–20.)

4. No Access Evidence. Four depositions of Redstone creative personnel — including depositions conducted by Luminos's own counsel — produced no evidence that any Redstone employee accessed, viewed, or was aware of Shardfall Chronicles during the relevant design phases. (Kessler Dep. Tr. at 62:7–64:12; Park Dep. Tr. at 33:14–35:22; Crane Dep. Tr. at 28:4–31:19; Whitfield Dep. Tr. at 55:11–59:7.)

5. No Market Harm. Shardfall Chronicles unit sales increased 18% in the six months following Ironclad Dominion's release, from approximately 8,400 units per month to approximately 9,912 units per month. (Chu Rebuttal Report ¶¶ 28–29.)

6. Non-Overlapping Markets. Ironclad Dominion (AAA multiplayer tactical RPG, $312 million Year-1 revenue) and Shardfall Chronicles (indie single-player action-RPG, approximately $4.62 million lifetime gross revenue) serve fundamentally different market segments with different price points, player demographics, and competitive landscapes. (Chu Rebuttal Report ¶¶ 20–25.)

7. Speculative Damages. Luminos's $28.5 million damages claim is based on a crude apportionment methodology with no demonstrated causal connection between the 37 challenged assets and consumer purchasing decisions for Ironclad Dominion. (Chu Rebuttal Report ¶¶ 33–38.) Luminos has not carried its burden under Federal Rule of Civil Procedure 56 of identifying specific facts showing a genuine issue for trial. See Celote

III. CONCLUSION For the foregoing reasons, Defendant Redstone Gaming Corp. respectfully requests that the Court grant its Motion for Summary Judgment, filed September 9, 2024 (ECF No. 87), dismiss Plaintiff Luminos Interactive LLC's Complaint with prejudice on fair-use grounds under 17 U.S.C. § 107 and on the independent ground that Luminos has failed to establish a genuine dispute of material fact as to substantial