UNITED STATES DISTRICT COURT DISTRICT OF NEVADA
DEFENDANT REDSTONE GAMING CORP.'S MOTION FOR SUMMARY JUDGMENT
Filed: September 9, 2024
TABLE OF CONTENTS
TABLE OF AUTHORITIES
Cases
Statutes
Rules
Other Authorities
I. INTRODUCTION
Defendant Redstone Gaming Corp. ("Redstone"), a Delaware corporation publicly traded on the Nasdaq Stock Market under the ticker symbol RDST and headquartered at 4100 Obsidian Tower Boulevard, Suite 2200, Las Vegas, Nevada 89109, respectfully moves this Court for summary judgment on all claims asserted by Plaintiff Luminos Interactive LLC ("Luminos") pursuant to Federal Rule of Civil Procedure 56(a). For the reasons set forth below, the undisputed material facts and applicable law compel judgment in Redstone's favor, and Luminos's complaint should be dismissed with prejudice.
This case arises from Luminos's contention that Redstone's flagship multiplayer tactical role-playing game, Ironclad Dominion — released on November 14, 2022, to widespread commercial and critical acclaim — infringes copyrights held by Luminos in its indie action-RPG title Shardfall Chronicles, which was released on March 22, 2021, and registered with the United States Copyright Office on June 8, 2021, under Registration Number VA 2-254-781. Luminos challenges thirty-seven (37) specific visual assets contained within Ironclad Dominion, consisting of twelve (12) character armor designs, nine (9) environmental crystal textures, eight (8) user-interface ("UI") icon sets, and eight (8) background matte paintings. On the basis of these thirty-seven assets — drawn from a game containing thousands of independently created visual elements — Luminos seeks actual damages of $28.5 million, a figure derived from applying a 9.13% apportionment factor to Ironclad Dominion's $312 million in Year-1 revenue. Luminos also seeks injunctive relief compelling removal of the allegedly infringing assets, statutory damages in the alternative, and an award of attorney's fees and costs.
Luminos's claims are meritless, and the undisputed record makes this manifest. Summary judgment is warranted on three independent grounds, each of which is individually sufficient to dispose of this action in its entirety.
First, Redstone's use of the challenged visual elements — to the extent any cognizable "use" exists at all — constitutes fair use under 17 U.S.C. § 107. All four statutory factors, weighed together, decisively favor Redstone. Ironclad Dominion is a highly transformative work that repurposes generic fantasy motifs into an entirely different artistic context: a mechanized-steampunk world with original narrative framing, distinct multiplayer tactical gameplay mechanics, and a fundamentally different visual vocabulary. The quantitative overlap between the two works is de minimis, with Redstone's retained expert, Dr. Ingrid Lautner — Professor of Digital Media and Game Design at Pacific Western University — finding that only four of the thirty-seven challenged assets exceed even a 40% similarity index, and no asset exceeds 52%. Most critically, Luminos cannot demonstrate any market harm whatsoever: Shardfall Chronicles' unit sales actually increased by 18% in the six months following Ironclad Dominion's release.
Second, the challenged assets were independently created by Redstone's development team, as conclusively established by version-control evidence that has been forensically verified. The first commit in the "ironclad-main" Git repository is dated February 12, 2020 — more than thirteen months before Shardfall Chronicles was released to the public. The repository contains 14,208 commits spanning February 2020 through October 2022, all of which have been verified for integrity and timestamp authenticity by Brindoval Forensic Consulting LLC. The concept art files, environmental textures, and character design assets at issue were created and committed to the repository before Luminos's game even existed in the public marketplace. Independent creation is a complete defense to copyright infringement, and the undisputed evidence establishes that defense beyond any genuine dispute.
Third, the elements Luminos challenges are unprotectable under the scènes à faire doctrine and the related merger doctrine. Crystalline cave textures, medieval plate-armor silhouettes, radial menu interfaces, and dark-fantasy landscape compositions are standard, stock elements of the fantasy-RPG genre. They are the building blocks from which all games in this genre are constructed, and Luminos cannot claim a monopoly over them. Copyright law does not permit a single developer to lay claim to the visual lingua franca of an entire genre.
This Motion is supported by the concurrently filed Statement of Undisputed Material Facts (Attachment A), and the Declarations of Jordan Kessler, Vice President of Creative Development at Redstone Gaming Corp.; Seo-Yeon Park, Lead Character Artist at Redstone Gaming Corp.; Dr. Ingrid Lautner, Professor of Digital Media and Game Design at Pacific Western University; and Nathan Rourke, Lead Consultant at Brindoval Forensic Consulting LLC. The supporting exhibits are listed in Attachment B.
II. STATEMENT OF RELEVANT FACTS
A. The Parties
Redstone Gaming Corp. Redstone Gaming Corp. is a Delaware corporation with its principal offices at 4100 Obsidian Tower Boulevard, Suite 2200, Las Vegas, Nevada 89109. Redstone is publicly traded on the Nasdaq Stock Market under the ticker symbol RDST. (Declaration of Jordan Kessler ("Kessler Decl.") ¶ 2.) The company employs approximately 4,200 individuals across its Las Vegas headquarters, satellite studios in Montreal, Canada, and Kraków, Poland, and various remote positions. (Id.) For the fiscal year ending December 31, 2023, Redstone reported total revenue of approximately $1.87 billion and, as of April 2024, maintained a market capitalization of approximately $6.4 billion. (Id.) Redstone develops and publishes AAA multiplayer gaming titles, with its principal released titles including Ironclad Dominion, Voidrunner, and Ember Siege. (Id. ¶ 3.) The company is led by Chief Executive Officer Marcus Hale and General Counsel Priya Venkatesh. (Id. ¶ 2.)
Redstone's creative development process is overseen by Jordan Kessler, Vice President of Creative Development, who has held that role since September 2018 and has over twenty years of experience in the video game industry. (Kessler Decl. ¶¶ 1–2.) Seo-Yeon Park, Lead Character Artist at Redstone, has served in that capacity since June 2019 and leads a team of visual designers responsible for character design, environmental art, and UI development. (Declaration of Seo-Yeon Park ("Park Decl.") ¶¶ 1–2.) Both Kessler and Park played central roles in the development of Ironclad Dominion.
Luminos Interactive LLC. Luminos Interactive LLC is a Texas limited liability company with its principal office at 802 Brazos Creek Lane, Suite 5, Austin, Texas 78701. (Complaint ¶ 3.) Luminos employs fourteen (14) individuals and, for the fiscal year ending December 31, 2023, reported revenue of approximately $2.1 million. (Deposition of Tobias Crane ("Crane Dep."), July 22, 2024, at 14:8–15:3.) Luminos was founded and is managed by Tobias Crane, who serves as the company's sole managing member. (Id. at 12:4–12.) Elara Whitfield serves as Luminos's Art Director and Co-Founder. (Deposition of Elara Whitfield ("Whitfield Dep."), July 29, 2024, at 8:12–9:5.)
Luminos's principal product is Shardfall Chronicles, an indie action-RPG that has sold approximately 185,000 lifetime units at a manufacturer's suggested retail price ("MSRP") of $24.99, generating estimated gross revenue of approximately $4.62 million. (Crane Dep. at 22:6–23:14; Whitmore & Pine CPAs financial data produced in discovery.) The company's remaining revenue derives from merchandise licensing and a small amount of downloadable content. (Crane Dep. at 23:15–24:8.)
The disparity between the parties — in terms of size, resources, market presence, and the nature of their respective products — is a recurring theme throughout this litigation. Redstone is a publicly traded AAA game publisher with a billion-dollar revenue base; Luminos is a fourteen-person indie studio. Ironclad Dominion is a AAA multiplayer tactical RPG sold at a premium price point on PC and major console platforms; Shardfall Chronicles is a single-player indie action-RPG sold exclusively through a third-party PC digital storefront at $24.99. As discussed in detail below, these differences are directly relevant to the fair-use analysis, the absence of market harm, and the fundamental implausibility of Luminos's claims.
B. Development of *Ironclad Dominion*
Development of Ironclad Dominion commenced in the first quarter of 2020, approximately January 2020, under the creative leadership of Jordan Kessler. (Kessler Decl. ¶ 3.) The first commit in the project's version-control repository — designated "ironclad-main" in Redstone's internal Git infrastructure — is dated February 12, 2020. (Id.; Declaration of Nathan Rourke ("Rourke Decl.") ¶ 5; RGC-000014–RGC-000089.) This date is critically significant because it establishes that Redstone's development of Ironclad Dominion began more than thirteen months before Shardfall Chronicles was released to the public on March 22, 2021.
The development of Ironclad Dominion was a large-scale, multi-year undertaking involving hundreds of creative professionals. Seo-Yeon Park led a team of character artists, environmental texture designers, and UI framework developers who began producing visual assets for the game in early 2020. (Park Decl. ¶¶ 3–5.) The team's initial work focused on establishing the visual identity and design language for the game, which Kessler and his creative leadership team conceived as a "mechanized-steampunk" aesthetic — a fusion of industrial-mechanical design principles with traditional fantasy tropes. (Kessler Decl. ¶¶ 8–12.) This aesthetic was articulated in a series of internal design documents, mood boards, and creative briefs developed in Q1 and Q2 2020, all of which are reflected in the ironclad-main repository and were produced in discovery. (Id. ¶ 9; RGC-000090–RGC-000412.)
The ironclad-main repository contains a total of 14,208 commits spanning from February 12, 2020, through October 2022. (Rourke Decl. ¶ 6.) The integrity and timestamps of all 14,208 commits have been independently verified by Brindoval Forensic Consulting LLC, a digital forensics firm retained by Redstone for purposes of this litigation. (Id. ¶¶ 6–12.) As discussed in greater detail in Section II.F below, Brindoval's analysis confirmed that the repository's commit history has not been altered, backdated, or tampered with, and that the timestamps accurately reflect the dates on which assets were created and committed to the project. (Id.)
Ironclad Dominion features armored warrior characters rendered in a mechanized-steampunk idiom, with riveted plating, pneumatic joints, and gear-driven ornamentation that distinguish its character designs from those found in other fantasy RPGs. (Park Decl. ¶¶ 10–15.) The game's environments draw on industrial and mechanical design references — factories, foundries, mechanical citadels, and steam-powered fortifications — creating a visual world that is fundamentally different from the dark-fantasy crystalline aesthetic of Shardfall Chronicles. (Kessler Decl. ¶¶ 10–12.) The game's UI employs a contextual radial HUD that was designed to serve the distinct requirements of multiplayer tactical gameplay, including real-time squad coordination and ability management features that have no analogue in single-player action-RPG titles. (Id. ¶ 11; Park Decl. ¶ 14.)
Ironclad Dominion was released on November 14, 2022, on PC and major console platforms. (Kessler Decl. ¶ 7.) In its first twelve months of availability, the game generated $312 million in revenue. (Id.; RGC-001205.) The game received widespread critical acclaim and was nominated for multiple industry awards. (Id. ¶ 7.)
C. *Shardfall Chronicles* and Luminos's Copyright
Shardfall Chronicles is an indie action-RPG developed by Luminos and released on March 22, 2021, on PC via a third-party digital storefront. (Complaint ¶ 12; Crane Dep. at 18:3–19:7.) The game features a dark-fantasy aesthetic characterized by crystalline environmental textures, stylized armored characters, and a distinctive radial menu UI. (Whitfield Dep. at 14:6–16:12.) Luminos registered the copyright for the game's audiovisual elements with the United States Copyright Office on June 8, 2021, receiving Registration Number VA 2-254-781. (Complaint ¶ 14; Exhibit A to Complaint; Exhibit 1 hereto.)
Redstone does not dispute, for purposes of this Motion, that Luminos holds a valid copyright registration in Shardfall Chronicles' audiovisual elements. Redstone does, however, dispute the scope of protection afforded by that registration, as the registration covers the game's audiovisual work as a whole and does not independently protect the individual generic visual elements that Luminos alleges are infringed. The scènes à faire doctrine and the idea/expression dichotomy set forth in 17 U.S.C. § 102(b) significantly limit the protectable scope of Luminos's copyright, as discussed in Section IV.C below.
D. Luminos's Complaint and Allegations
On March 18, 2024, Luminos filed its Complaint in this Court, asserting a single claim for copyright infringement under the Copyright Act of 1976. (Dkt. 1.) The Complaint alleges that thirty-seven (37) specific visual assets in Ironclad Dominion are "substantially similar" to corresponding assets in Shardfall Chronicles. (Complaint ¶¶ 24–60.) The thirty-seven challenged assets are categorized as follows: twelve (12) character armor designs (Complaint ¶¶ 24–35); nine (9) environmental crystal textures (Complaint ¶¶ 36–44); eight (8) UI icon sets (Complaint ¶¶ 45–52); and eight (8) background matte paintings (Complaint ¶¶ 53–60).
Luminos seeks the following relief: (a) injunctive relief, specifically an order requiring Redstone to remove or replace all allegedly infringing assets from Ironclad Dominion; (b) actual damages of $28.5 million, calculated by applying a 9.13% apportionment factor to Ironclad Dominion's $312 million in Year-1 revenue — a figure Luminos contends represents the portion of the game's commercial appeal attributable to the thirty-seven challenged assets; (c) statutory damages in the alternative; and (d) attorney's fees and costs. (Complaint ¶¶ 72–78.)
E. Expert Analysis — Visual Asset Comparison
Dr. Ingrid Lautner, Professor of Digital Media and Game Design at Pacific Western University, was retained by Redstone as an expert witness in this matter. (Declaration of Dr. Ingrid Lautner ("Lautner Decl.") ¶¶ 1–5.) Dr. Lautner holds a Ph.D. in Computer Science with a specialization in Digital Media from Carnegie Mellon University and has published extensively on visual design methodologies in video game development. (Id. ¶ 3.) She has served as an expert witness in fourteen prior matters involving digital art and visual asset analysis. (Id. ¶ 4.)
Dr. Lautner conducted a rigorous pixel-level visual comparison of all thirty-seven assets challenged by Luminos. (Id. ¶¶ 15–22; Expert Report of Dr. Ingrid Lautner, dated August 19, 2024 ("Lautner Report"), Exhibit 3 hereto.) Her methodology employed industry-standard structural similarity analysis ("SSIM"), perceptual hash comparison, and color-histogram normalization — well-established computational techniques for quantifying visual similarity between digital images. (Lautner Decl. ¶¶ 10–14.) Dr. Lautner's analysis produced a composite similarity index for each of the thirty-seven asset pairs, reflecting the degree of visual overlap between each challenged Ironclad Dominion asset and its alleged counterpart in Shardfall Chronicles.
The results of Dr. Lautner's analysis are unequivocal. Of the thirty-seven challenged assets, only four (4) had a similarity index above 40% — the threshold recognized in the visual-comparison methodology literature as the level at which similarity may warrant closer scrutiny. (Lautner Decl. ¶¶ 17–18.) No asset exceeded a similarity index of 52%. (Id. ¶ 18.) The quantitative overlap between the challenged assets is, in Dr. Lautner's expert opinion, de minimis relative to each work's totality. (Id. ¶ 23.)
Critically, Dr. Lautner concluded that the similarities that do exist between the two games' visual elements "reflect common genre conventions — including crystalline textures, radial menus, and plate-armor silhouettes — rather than any act of copying." (Lautner Decl. ¶ 24.) Her expert report identifies and catalogs numerous pre-existing games, films, and other visual media featuring substantially similar visual elements, all of which predate both Shardfall Chronicles and Ironclad Dominion. (Lautner Report at 34–48; Lautner Decl. ¶¶ 31–40.)
By contrast, Luminos's expert, Dr. Calvin Yates — an Independent Digital Forensics Consultant and former Associate Professor at the Riverbend Institute of Technology — employed a proprietary similarity metric that has not been peer-reviewed, validated against industry-standard tools, or accepted in any prior judicial proceeding. (Rebuttal Expert Report of Dr. Ingrid Lautner, dated September 3, 2024 ("Lautner Rebuttal"), Exhibit 4 hereto, at 5–12.) Dr. Yates's analysis failed to control for genre-standard elements, applied no normalization for scènes à faire tropes, and produced inflated similarity scores that conflate unprotectable genre conventions with protectable original expression. (Lautner Rebuttal at 8–11.) The methodological deficiencies in Dr. Yates's analysis are addressed in greater detail in Section IV.A.3 below.
F. Metadata Verification
Brindoval Forensic Consulting LLC ("Brindoval"), a digital forensics firm with offices at 3310 Wilshire Boulevard, Suite 700, Los Angeles, California 90010, was retained by Redstone to conduct a comprehensive metadata analysis of Redstone's art pipeline and version-control logs. (Rourke Decl. ¶¶ 1–4.) Nathan Rourke, Lead Consultant at Brindoval, supervised the analysis. (Id. ¶ 1.) Mr. Rourke holds a Master of Science degree in Computer Science from Stanford University and has over fifteen years of experience in digital forensics and electronic discovery. (Id. ¶ 2.)
Brindoval's analysis focused on the ironclad-main Git repository, which serves as the primary version-control system for the Ironclad Dominion project. (Rourke Decl. ¶ 5.) Brindoval verified the integrity and timestamps of all 14,208 commits in the repository through a multi-step forensic process that included: (a) cryptographic hash verification of each commit's SHA-1 identifier against the repository's internal chain of provenance; (b) comparison of commit timestamps against server-side audit logs maintained by Redstone's IT infrastructure team; (c) cross-referencing of commit timestamps with contemporaneous Jira project-management tickets, Confluence design documents, and internal Brightmoor Data Systems; and (d) analysis of file-system metadata for the underlying asset files (creation dates, modification dates, and access dates) as preserved in Redstone's backup infrastructure. (Id. ¶¶ 6–12.)
Brindoval's analysis confirmed that the repository's commit history has not been altered, backdated, rebased in a manner that would modify historical timestamps, or tampered with in any way. (Rourke Decl. ¶ 12.) The timestamps accurately reflect the dates on which assets were created and committed to the project. (Id.) Most significantly, Brindoval confirmed that the concept art files, environmental textures, and character design assets challenged by Luminos were created and committed to the repository prior to Shardfall Chronicles' March 22, 2021 release date. (Id. ¶¶ 13–18.) The analysis of asset provenance confirmed that each challenged asset originated within Redstone's internal development pipeline, with no evidence of any external source material or third-party origin. (Id. ¶¶ 19–22.)
G. Market Impact Analysis
Evergreen Valuation Group LLC ("Evergreen"), a financial consulting and economic analysis firm with offices at 55 West Monroe Street, Suite 2300, Chicago, Illinois 60603, was retained by Redstone to prepare a rebuttal damages report. (Expert Report of Dr. Sandra Chu, Evergreen Valuation Group LLC, dated August 19, 2024 ("Chu Report"), Exhibit 5 hereto.) Dr. Sandra Chu, Lead Analyst at Evergreen, holds a Ph.D. in Economics from the University of Chicago and has over twenty years of experience in economic damages analysis and intellectual property valuation. (Chu Report at 2–3.)
Dr. Chu's report demonstrates that Ironclad Dominion and Shardfall Chronicles serve non-overlapping market segments. (Chu Report at 12–18.) Ironclad Dominion is a AAA multiplayer tactical RPG sold at a premium price point of $59.99 or higher on PC and major console platforms, produced by a large studio with a multi-hundred-million-dollar development budget. (Id. at 12–13.) Shardfall Chronicles is a single-player indie action-RPG sold exclusively on a PC digital storefront at an MSRP of $24.99, produced by a fourteen-person studio. (Id. at 13–14.) The relevant consumer bases, distribution channels, pricing models, and gameplay experiences are fundamentally different, and there is no meaningful competitive overlap between the two products. (Id. at 14–18.)
Dr. Chu's analysis of post-release sales data further undermines any theory of market harm. Shardfall Chronicles' unit sales actually increased by 18% in the six months following Ironclad Dominion's November 14, 2022 release, rising from approximately 8,400 units per month to approximately 9,912 units per month. (Chu Report at 19–22; Whitmore & Pine CPAs financial data produced in discovery, Exhibit 11 hereto.) This increase is consistent with broader industry trends showing that high-profile game releases in adjacent genres tend to stimulate, rather than suppress, interest in the genre as a whole — a well-documented "rising tide" effect in the gaming industry. (Chu Report at 21–22.) The data affirmatively negates any theory of market harm or market substitution.
H. Procedural History
The procedural history of this action is as follows:
• March 18, 2024: Luminos files its Complaint, asserting a single claim for copyright infringement. (Dkt. 1.)
• April 22, 2024: Redstone files its Answer and Affirmative Defenses, asserting, inter alia, the defenses of fair use, independent creation, scènes à faire/merger, and failure to state a claim. (Dkt. 12.)
• May 6, 2024: The parties conduct their Rule 26(f) conference and submit a joint discovery plan to the Court. (Dkt. 18.)
• May 20, 2024: Redstone serves its initial disclosures pursuant to Rule 26(a)(1). (Dkt. 21.)
• June 14, 2024: Luminos serves its First Set of Interrogatories and First Request for Production of Documents on Redstone. (Dkt. 28.)
• July 8, 2024: Redstone serves its responses to Luminos's discovery requests. Redstone produces 42,316 pages of documents, Bates-stamped RGC-000001 through RGC-042316, comprising the complete ironclad-main repository logs, concept art archives, internal design review presentations, personnel records, financial data, and related materials. (Dkt. 35.)
• July 22, 2024: Deposition of Tobias Crane, founder and managing member of Luminos. (Exhibit 7 hereto.)
• July 29, 2024: Deposition of Elara Whitfield, Art Director and Co-Founder of Luminos. (Exhibit 8 hereto.)
• August 5, 2024: Deposition of Jordan Kessler, VP of Creative Development at Redstone. (Exhibit 9 hereto.)
• August 12, 2024: Deposition of Seo-Yeon Park, Lead Character Artist at Redstone. (Exhibit 10 hereto.)
• August 19, 2024: Expert reports exchanged. Redstone served the Expert Report of Dr. Ingrid Lautner (visual asset comparison) and the Expert Report of Dr. Sandra Chu (market impact and damages rebuttal). Luminos served the Expert Report of Dr. Calvin Yates (visual asset comparison). (Exhibits 3, 5 hereto.)
• September 3, 2024: Rebuttal Expert Report of Dr. Ingrid Lautner filed and served. (Exhibit 4 hereto.)
Discovery is now closed, and the factual record is complete for disposition on summary judgment. The undisputed material facts, as set forth in Attachment A hereto, establish that Redstone is entitled to judgment as a matter of law.
III. LEGAL STANDARD
Summary judgment is appropriate where "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A fact is "material" if it "might affect the outcome of the suit under the governing law," and a dispute is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The moving party bears the initial burden of demonstrating the absence of a genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party has met this burden, the burden shifts to the nonmoving party to "designate specific facts showing that there is a genuine issue for trial." Id. at 324 (internal quotation marks omitted). The nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
The Court must view the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in that party's favor. Anderson, 477 U.S. at 255. However, the nonmoving party "must come forward with more than 'the mere existence of a scintilla of evidence.'" Id. at 252. Unsupported allegations, conclusory statements, and speculation are insufficient to create a genuine issue of material fact. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
The fair-use determination under 17 U.S.C. § 107 is a mixed question of law and fact that is "particularly amenable to summary judgment" where, as here, "the material facts are undisputed and the question is essentially a legal one." See Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 560 (1985); Fisher v. Dees, 794 F.2d 432, 436 (9th Cir. 1986). The Supreme Court has repeatedly emphasized that fair use is "an affirmative defense" that may be resolved as a matter of law on an undisputed record. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 590 (1994); Calderon Corporation v. Ridgeline Industries Am., Inc., 593 U.S. 1, 33 (2021).
To establish copyright infringement, a plaintiff must demonstrate: (1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original. Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991). The second element requires proof of both factual copying (i.e., that the defendant actually copied from the plaintiff's work, as opposed to creating independently) and substantial similarity between the protectable elements of the two works. Sid & Marty Krofft Television Prods., Inc. v. McDonald's Corp., 562 F.2d 1157, 1164 (9th Cir. 1977); Skidmore v. Led Zeppelin, 952 F.3d 1051, 1064 (9th Cir. 2020) (en banc). Even where both elements are satisfied, fair use under 17 U.S.C. § 107 constitutes a complete defense to a claim of copyright infringement. Campbell, 510 U.S. at 577.
With respect to the burden of proof on fair use, the defendant bears the burden of establishing that its use qualifies as fair. The court evaluates the four statutory factors set forth in Section 107, but the analysis is not mechanical — "the task is not to be simplified with bright-line rules, for the statute, like the doctrine it recognizes, calls for case-by-case analysis." Campbell, 510 U.S. at 577. The defendant need not prevail on every factor; the test requires "a holistic balancing" of all four factors in light of the purposes of copyright. Severin Industries, 593 U.S. at 33.
Independently, 17 U.S.C. § 102(b) provides that "[i]n no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work." This statutory provision codifies the idea/expression dichotomy, which requires courts to distinguish between protectable expression and unprotectable ideas. See Feist, 499 U.S. at 350. The related scènes à faire doctrine "excludes from copyright protection those elements of a work that necessarily follow from the choice of a given setting or genre." Cavalier v. Random House, Inc., 297 F.3d 815, 823 (9th Cir. 2002). Whether challenged elements are protectable expression or unprotectable scènes à faire is a question of law amenable to resolution on summary judgment. Satava v. Lowry, 323 F.3d 805, 810 (9th Cir. 2003).
IV. ARGUMENT
A. Redstone Is Entitled to Summary Judgment on Fair Use Grounds Under 17 U.S.C. § 107
Section 107 of the Copyright Act provides that "the fair use of a copyrighted work ... for purposes such as criticism, comment, news reporting, teaching ..., scholarship, or research, is not an infringement of copyright." 17 U.S.C. § 107. In determining whether a use is fair, the statute directs courts to consider four non-exclusive factors:
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
17 U.S.C. § 107. Each of these factors, addressed in turn below, favors Redstone. Considered together, they compel the conclusion that Redstone's use — to the extent any cognizable "use" of protectable expression has occurred at all — is fair as a matter of law.
1. Factor One: The Purpose and Character of the Use — *Ironclad Dominion* Is Highly Transformative. The first fair-use factor examines "the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes." 17 U.S.C. § 107(1). The "central" question under this factor is "whether the new work is 'transformative' — that is, whether it 'adds something new, with a different purpose or different character, altering the first with new expression, meaning, or message.'" Campbell, 510 U.S. at 579 (quoting Pierre N. Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. 1105, 1111 (1990)). As the Supreme Court recently reiterated in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, 598 U.S. 508 (2023), the transformative inquiry focuses on whether the allegedly infringing work has a "fundamentally different and new" purpose or character from the original. Id. at 541. Where the new work "has an obvious claim to some meaningful purpose or character beyond the original," the first factor favors fair use. Severin Industries, 593 U.S. at 35.
Ironclad Dominion is a paradigmatic example of transformative use. To the extent that Ironclad Dominion incorporates any visual elements that bear surface-level resemblance to elements found in Shardfall Chronicles, those elements have been repurposed into an entirely different artistic context, serving a fundamentally different creative vision, gameplay function, and audience experience. The similarities Luminos identifies — crystalline textures, armored figures, radial menus — are generic fantasy motifs that predate both games by decades. Ironclad Dominion takes these common building blocks and recontextualizes them within a mechanized-steampunk world that bears no resemblance to Shardfall Chronicles' dark-fantasy crystalline setting.
The Declaration of Jordan Kessler confirms that the creative vision for Ironclad Dominion was centered on "industrial-mechanical aesthetics fused with fantasy tropes" — an approach that drew inspiration from steampunk art, industrial design, military-mechanical references, and historical armor and weapons design. (Kessler Decl. ¶¶ 8–12.) Kessler attests that the creative team's primary visual references included industrial revolution-era machinery, Victorian engineering aesthetics, and World War I-era military hardware. (Id. ¶ 9.) At no point during the creative development process did the team reference, consult, or draw upon any indie game title, including Shardfall Chronicles. (Id. ¶ 14.)
The Declaration of Seo-Yeon Park further reinforces the transformative nature of Ironclad Dominion's visual identity. Park attests that the character armor designs in Ironclad Dominion "incorporate riveted plating, pneumatic joints, gear-driven ornamentation, and mechanical articulation features" that are entirely absent from Shardfall Chronicles' organic crystalline aesthetic. (Park Decl. ¶¶ 10–13.) Park's design process began with original pencil-and-ink concept sketches inspired by industrial machinery, which were then developed through a multi-stage digital pipeline into the finished character models. (Id. ¶¶ 5–9.) The resulting character designs bear the unmistakable imprint of their mechanized-steampunk origin, and any resemblance to the plate-armor silhouettes found in Shardfall Chronicles — or in any of the hundreds of other fantasy RPGs that feature armored warrior characters — is attributable to the inherent constraints of the genre, not to any act of copying.
Dr. Lautner's expert analysis confirms this conclusion at the quantitative level. After conducting a comprehensive visual comparison of all thirty-seven challenged assets, Dr. Lautner concluded that the design language and visual treatment of Ironclad Dominion's assets are "fundamentally divergent" from those of Shardfall Chronicles. (Lautner Decl. ¶ 24.) Dr. Lautner found that the two games employ different color palettes (warm, metallic tones with rust and brass accents in Ironclad Dominion versus cool, luminescent blues and purples in Shardfall Chronicles), different rendering techniques (hard-surface modeling with mechanical detailing in Ironclad Dominion versus organic, flowing forms with crystalline overlays in Shardfall Chronicles), and different compositional approaches (industrial symmetry and geometric precision in Ironclad Dominion versus organic asymmetry and natural formations in Shardfall Chronicles). (Lautner Report at 22–33.) In Dr. Lautner's expert opinion, "any surface-level similarity reflects shared genre conventions — the common vocabulary of the fantasy-RPG genre — not derivative copying." (Lautner Decl. ¶ 24.)
The transformative character of Ironclad Dominion extends beyond its visual aesthetics to its fundamental creative purpose. Ironclad Dominion is a multiplayer tactical RPG — a genre defined by real-time strategic coordination between multiple players, squad-based tactical gameplay, and competitive multiplayer environments. Shardfall Chronicles is a single-player action-RPG — a fundamentally different genre defined by solitary exploration, narrative-driven progression, and individual combat mechanics. The gameplay experiences are as different as chess and solitaire: both involve cards or pieces on a board, but no reasonable observer would confuse one for the other. This difference in purpose and function is directly relevant to the transformative inquiry. See Severin Industries, 593 U.S. at 35–36 (considering the different purpose and function of the new work in assessing transformativeness).
Even if some visual elements in Ironclad Dominion share a common ancestry with elements in Shardfall Chronicles — an ancestry rooted not in copying but in the shared heritage of the fantasy-RPG genre — the transformative recontextualization of those elements in Ironclad Dominion is precisely the type of creative evolution that copyright law was designed to encourage. The Copyright Act does not grant any single creator a monopoly over generic visual tropes; rather, it "encourages the production of new creative works by allowing subsequent authors to build upon the ideas and information contained in previous works." Campbell, 510 U.S. at 575–76 (internal quotation marks omitted).
Luminos may argue that the commercial nature of Ironclad Dominion weighs against a finding of fair use. This argument lacks merit. The Supreme Court has made clear that "the mere fact that a use is educational and not for profit does not insulate it from a finding of infringement, any more than the commercial character of a use bars a finding of fairness." Campbell, 510 U.S. at 584. "If commerciality carried presumptive force against a finding of fairness, the presumption would swallow nearly all of the illustrative uses listed in the preamble paragraph of § 107." Id. at 584. Both Ironclad Dominion and Shardfall Chronicles are commercial products; this parity neutralizes any adverse inference from the commercial nature of the use. See Blanch v. Koons, 467 F.3d 244, 253 (2d Cir. 2006) (finding fair use despite commercial purpose where use was highly transformative); Sega Enters. Ltd. v. Accolade, Inc., 977 F.2d 1510, 1522 (9th Cir. 1992) (same).
For all of these reasons, the first fair-use factor weighs heavily in Redstone's favor.
2. Factor Two: The Nature of the Copyrighted Work. The second fair-use factor examines "the nature of the copyrighted work." 17 U.S.C. § 107(2). This factor "calls for recognition that some works are closer to the core of intended copyright protection than others, with the consequence that fair use is more difficult to establish when the former works are copied." Campbell, 510 U.S. at 586.
Redstone acknowledges that Shardfall Chronicles is an expressive, creative work that falls within the core of copyright protection. This factor therefore weighs slightly in Luminos's favor. Redstone does not seek to minimize the creative effort that Luminos invested in developing Shardfall Chronicles; the game is, by all accounts, a well-crafted indie title that reflects genuine artistic vision and creative skill.
However, the significance of this factor is substantially diminished in the context of the present case, for two reasons.
First, the Supreme Court has consistently held that the second factor "is of limited importance where the use is transformative." Campbell, 510 U.S. at 586. As discussed above, Ironclad Dominion's use of the challenged elements — to the extent any cognizable "use" occurred — is highly transformative, recontextualizing generic fantasy motifs into a fundamentally different artistic vision. Where the first and fourth factors carry the greatest weight in the overall fair-use balancing, the second factor's limited tilt in favor of the plaintiff has little practical effect on the outcome. See Severin Industries, 593 U.S. at 40 (according the second factor "diminished" significance in the overall analysis).
Second, many of the specific elements that Luminos challenges sit at the boundary between protectable expression and unprotectable ideas or scènes à faire, which limits the scope of protection afforded even to an otherwise creative work. See Stewart v. Abend, 495 U.S. 207, 237–38 (1990) (the scope of copyright protection "depends on the nature of the expression in the original work"). Crystalline cave textures, medieval plate-armor silhouettes, radial menu interfaces, and dark-fantasy landscape compositions are standard genre elements that appear in countless fantasy-RPG titles. Although Shardfall Chronicles' particular expression of these elements may be protectable in its specific details, the underlying visual concepts and motifs are not. As discussed more fully in Section IV.C below, the scènes à faire doctrine significantly constrains the universe of protectable expression in Luminos's work, and the second factor must be evaluated in light of that constraint.
Even viewed in the light most favorable to Luminos, the second factor provides, at most, modest support for Luminos's position — far too little to overcome the decisive weight of the remaining three factors, all of which favor Redstone.
3. Factor Three: The Amount and Substantiality of the Portion Used — De Minimis Overlap. The third fair-use factor considers "the amount and substantiality of the portion used in relation to the copyrighted work as a whole." 17 U.S.C. § 107(3). This factor requires courts to assess both the quantitative extent of the copying and whether the portions taken constitute the "heart" of the copyrighted work. Harper & Row, 471 U.S. at 564–65. Where the amount taken is de minimis, this factor weighs in the defendant's favor. See Newton v. Diamond, 388 F.3d 1189, 1195 (9th Cir. 2004) (holding that de minimis use precludes a finding of infringement).
Dr. Lautner's pixel-level comparison of all thirty-seven challenged assets demonstrates that the quantitative overlap between Ironclad Dominion and Shardfall Chronicles is de minimis. Of the thirty-seven asset pairs analyzed, only four (4) had a similarity index above 40% — the threshold recognized in the visual-comparison methodology literature as the level at which similarity may warrant further scrutiny. (Lautner Decl. ¶¶ 17–18.) No asset exceeded a similarity index of 52%. (Id. ¶ 18.) Even this highest-scoring asset — a comparison of crystalline environmental textures — reflects overlap that Dr. Lautner attributes to shared genre conventions rather than to any copying of protectable expression. (Lautner Report at 28–30.)
The thirty-seven challenged assets must also be considered in the context of each game's total visual content. Ironclad Dominion is a AAA title containing thousands of unique visual assets, including over 200 character models, more than 1,500 environmental textures, hundreds of UI elements, and dozens of matte paintings. (Kessler Decl. ¶ 13.) The thirty-seven challenged assets represent a vanishingly small fraction of the game's total visual content — far less than 1% of Ironclad Dominion's total visual asset library. Similarly, Shardfall Chronicles contains hundreds of visual assets beyond the thirty-seven that Luminos has chosen to challenge. The quantitative overlap, such as it exists, is de minimis relative to the totality of each work.
Nor can Luminos argue that the challenged elements represent the qualitative "heart" of either work. The "heart" of Ironclad Dominion — its defining creative contribution — lies in its mechanized-steampunk visual identity, its multiplayer tactical gameplay systems, its original narrative worldbuilding, and its AAA production values. None of these elements is implicated by Luminos's claims. Similarly, the thirty-seven challenged assets do not represent the "heart" of Shardfall Chronicles; they are individual visual components drawn from a much larger creative whole. See Funky Films, Inc. v. Time Warner Entm't Co., 462 F.3d 1072, 1081 (9th Cir. 2006) (rejecting substantial similarity claim where the allegedly copied elements were not the "core" of the plaintiff's work).
Luminos's contrary position rests principally on the expert report of Dr. Calvin Yates, whose analysis concluded that the similarity between the challenged assets is substantially greater than Dr. Lautner found. Dr. Yates's conclusions should be disregarded because they are based on a fundamentally flawed methodology. Dr. Lautner's rebuttal expert report, filed on September 3, 2024, identifies the following critical deficiencies in Dr. Yates's approach:
Failure to control for genre-standard elements. Dr. Yates's similarity analysis makes no distinction between visual elements that are common to the fantasy-RPG genre and elements that represent original, protectable expression. As a result, his analysis treats the mere fact that both games contain crystalline cave textures, armored warrior characters, and radial menu interfaces as evidence of copying — when these elements are, in fact, standard genre conventions found in dozens of pre-existing games. (Lautner Rebuttal at 8–9.)
No normalization for scènes à faire tropes. A rigorous visual-comparison methodology must account for the fact that certain visual elements are dictated by the genre or subject matter and are therefore unprotectable. Dr. Yates's methodology applies no such normalization, treating all visual similarities as equally probative of copying regardless of their origin. (Lautner Rebuttal at 9–10.)
Use of an unvalidated proprietary metric. Dr. Yates employed a proprietary similarity metric — which he refers to as the "Yates Visual Correspondence Score" — that has not been published in any peer-reviewed journal, validated against industry-standard tools such as SSIM or perceptual hashing, or accepted in any prior judicial proceeding. The metric's underlying algorithm has not been disclosed, precluding meaningful scrutiny of its reliability. (Lautner Rebuttal at 10–11.)
In light of these methodological deficiencies, Dr. Yates's conclusions cannot create a genuine dispute of material fact sufficient to defeat summary judgment. See Swirsky v. Carey, 376 F.3d 841, 857 (9th Cir. 2004) (expert testimony that is insufficiently grounded in reliable methodology does not create a triable issue of fact). Dr. Lautner's analysis, by contrast, employs well-established, peer-reviewed computational techniques and reaches conclusions that are consistent with the visual evidence, the forensic metadata, and the declarations of the artists who actually created the challenged assets.
The third factor weighs in Redstone's favor.
4. Factor Four: The Effect of the Use Upon the Potential Market for the Copyrighted Work — No Market Harm. The fourth fair-use factor considers "the effect of the use upon the potential market for or value of the copyrighted work." 17 U.S.C. § 107(4). This factor requires the court to assess not only the extent of market harm caused by the allegedly infringing use, but also "whether unrestricted and widespread conduct of the sort engaged in by the defendant ... would result in a substantially adverse impact on the potential market." Campbell, 510 U.S. at 590 (internal quotation marks omitted). This factor has been called "undoubtedly the single most important element of fair use." Harper & Row, 471 U.S. at 566.
The undisputed evidence demonstrates that Ironclad Dominion has caused no market harm to Shardfall Chronicles — and, indeed, the data shows the opposite. Dr. Sandra Chu's comprehensive market impact analysis, prepared on behalf of Redstone by Evergreen Valuation Group LLC, establishes the following undisputed facts:
Non-overlapping market segments. Ironclad Dominion and Shardfall Chronicles serve fundamentally different market segments. Ironclad Dominion is a AAA multiplayer tactical RPG sold at a premium price point ($59.99 or higher) on PC and major console platforms; it was produced by a large studio with hundreds of developers and a substantial marketing budget. Shardfall Chronicles is a single-player indie action-RPG sold exclusively on a PC digital storefront at an MSRP of $24.99, produced by a fourteen-person studio. (Chu Report at 12–18.) The relevant consumer bases are substantially distinct: AAA multiplayer RPG consumers seek competitive multiplayer experiences, social gaming, and high-end production values, while indie action-RPG consumers seek narrative-driven single-player experiences, stylized aesthetics, and accessible pricing. (Id. at 14–16.) The distribution channels differ (multi-platform AAA release versus single-platform indie release), the pricing models differ ($59.99+ versus $24.99), and the gameplay experiences differ (multiplayer tactical versus single-player action). (Id. at 16–18.) There is no meaningful competitive overlap between these two products, and no reasonable basis to conclude that one serves as a market substitute for the other. (Id. at 18.)
Post-release sales increase. Far from demonstrating market harm, the undisputed sales data shows that Shardfall Chronicles' unit sales actually increased by 18% in the six months following Ironclad Dominion's November 14, 2022 release. (Chu Report at 19–22.) In the six months prior to Ironclad Dominion's release (May 2022 through October 2022), Shardfall Chronicles averaged approximately 8,400 units sold per month. (Id. at 19.) In the six months following Ironclad Dominion's release (November 2022 through April 2023), Shardfall Chronicles averaged approximately 9,912 units sold per month — an increase of approximately 1,512 units per month, or 18%. (Id. at 19–20; Whitmore & Pine CPAs financial data, Exhibit 11 hereto.) This increase is consistent with the well-documented "rising tide" effect in the gaming industry, whereby high-profile releases in a genre tend to stimulate consumer interest in the genre as a whole, benefiting both AAA and indie titles. (Chu Report at 21–22.)
This evidence affirmatively negates any theory of market harm or market substitution. Luminos cannot point to any evidence — and no such evidence exists in the record — that any consumer purchased Ironclad Dominion instead of Shardfall Chronicles due to the presence of the thirty-seven challenged visual assets. The notion that a consumer's purchasing decision between a $60 AAA multiplayer tactical RPG and a $25 indie single-player action-RPG would be influenced by the similarity of individual background textures, armor silhouettes, or UI icon sets defies common sense and is unsupported by any evidence in the record.
Luminos's damages theory further underscores the speculative nature of its market-harm claim. Luminos seeks $28.5 million in actual damages, calculated by applying a 9.13% apportionment factor to Ironclad Dominion's $312 million in Year-1 revenue. (Complaint ¶ 72.) This methodology assumes that 9.13% of Ironclad Dominion's commercial success is attributable to the thirty-seven challenged visual assets — an assumption that is, to put it charitably, extraordinary. Ironclad Dominion's commercial success is attributable to its original gameplay mechanics, its multiplayer infrastructure, its narrative worldbuilding, its AAA production values, its marketing campaign, and the creative contributions of hundreds of developers working over nearly three years. The suggestion that 9.13% of this success — nearly $30 million — is attributable to thirty-seven visual assets that bear, at most, a 52% similarity to assets in a $25 indie game is speculative in the extreme and is unsupported by any competent evidence. Dr. Chu's rebuttal report demonstrates that Luminos's apportionment methodology is "economically unsound, factually unsupported, and inconsistent with accepted principles of damages calculation in intellectual property cases." (Chu Report at 23–28.)
The fourth factor weighs decisively in Redstone's favor.
5. Balancing of the Four Factors. The fair-use analysis requires a holistic balancing of all four statutory factors in light of the purposes of copyright. Campbell, 510 U.S. at 578; Severin Industries, 593 U.S. at 33. The undisputed record in this case compels the following conclusions:
• Factor One (purpose and character of the use): Weighs heavily in Redstone's favor. Ironclad Dominion is a highly transformative work that recontextualizes generic fantasy motifs into a fundamentally different artistic vision, serving a different creative purpose and a different audience.
• Factor Two (nature of the copyrighted work): Weighs slightly in Luminos's favor. Shardfall Chronicles is an expressive, creative work. However, this factor is of diminished significance where the use is transformative, and the challenged elements sit at the boundary between protectable expression and unprotectable scènes à faire.
• Factor Three (amount and substantiality): Weighs in Redstone's favor. The quantitative overlap is de minimis, with only four of thirty-seven assets exceeding even a 40% similarity index, and the overlap is attributable to genre conventions rather than copying.
• Factor Four (effect on the market): Weighs decisively in Redstone's favor. The two games serve non-overlapping market segments, Shardfall Chronicles' sales increased after Ironclad Dominion's release, and Luminos cannot demonstrate any market harm.
Three of four factors weigh in Redstone's favor. The second factor provides only modest support for Luminos and is of diminished significance in the overall analysis. The Supreme Court has emphasized that "the more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use." Campbell, 510 U.S. at 579. Here, the highly transformative character of Ironclad Dominion, combined with the de minimis quantitative overlap and the complete absence of market harm, compels the conclusion that Redstone's use is fair as a matter of law.
Summary judgment should be granted on this ground alone.
B. Alternatively, Redstone Is Entitled to Summary Judgment Based on Independent Creation
Even if the Court were to conclude that the fair-use defense does not warrant summary judgment — which it plainly does — Redstone is independently entitled to summary judgment on the ground that the challenged assets were independently created, not copied from Shardfall Chronicles.
Independent creation is a complete defense to copyright infringement. "Copyright protects only against copying, not against independent creation." Feist, 499 U.S. at 345. It is well established that "if a defendant independently creates a work that happens to be similar to the plaintiff's work, there is no infringement, even if the similarity is striking." Three Boys Music Corp. v. Bolton, 212 F.3d 477, 481 (9th Cir. 2000). To establish copying, a plaintiff must prove either direct evidence of copying or, more commonly, circumstantial evidence consisting of: (1) the defendant's access to the copyrighted work, and (2) probative similarity between the two works. Skidmore, 952 F.3d at 1064. If the defendant establishes independent creation, the plaintiff's claim fails regardless of the degree of similarity between the two works. Three Boys Music, 212 F.3d at 481.
The undisputed evidence in this case conclusively establishes that Redstone independently created the challenged assets without any reference to, copying from, or awareness of Shardfall Chronicles.
Timeline evidence: development predating release. The most powerful evidence of independent creation is the undisputed timeline. The first commit in the ironclad-main Git repository is dated February 12, 2020. (Kessler Decl. ¶ 3; Rourke Decl. ¶ 5; RGC-000014–RGC-000089.) Shardfall Chronicles was not released until March 22, 2021 — more than thirteen months later. (Complaint ¶ 12; Kessler Decl. ¶ 4.) This means that Redstone's creative team began designing Ironclad Dominion — including the character armor designs, environmental textures, UI frameworks, and matte paintings at issue — over a year before Shardfall Chronicles was available for anyone outside of Luminos to see, play, or access.
This is not a case where the timeline is ambiguous or where the defendant's development arguably overlapped with the availability of the plaintiff's work. The concept art files and environmental textures for the challenged assets were committed to the ironclad-main repository prior to Shardfall Chronicles' March 22, 2021 release date. (Rourke Decl. ¶¶ 13–18; Park Decl. ¶¶ 4–9.) Specifically, Brindoval's forensic analysis confirmed that the relevant asset files were committed at the following dates, all predating the release of Shardfall Chronicles:
• Character armor concept sketches: earliest commits dated March 2020 through August 2020 (Rourke Decl. ¶ 14; Park Decl. ¶ 5)
• Environmental crystal texture prototypes: earliest commits dated May 2020 through November 2020 (Rourke Decl. ¶ 15; Park Decl. ¶ 6)
• UI framework mockups and icon set drafts: earliest commits dated July 2020 through January 2021 (Rourke Decl. ¶ 16; Park Decl. ¶ 7)
• Background matte painting compositions: earliest commits dated September 2020 through February 2021 (Rourke Decl. ¶ 17; Park Decl. ¶ 8)
Every one of these dates precedes Shardfall Chronicles' March 22, 2021 release. The assets evolved through subsequent iterative refinement — as is standard in AAA game development — but their foundational designs were established before Shardfall Chronicles entered the public domain.
Forensic verification of repository integrity. The integrity and reliability of this timeline evidence have been independently verified by Brindoval Forensic Consulting LLC. Nathan Rourke's Declaration attests that Brindoval applied a rigorous multi-step forensic methodology — including cryptographic hash verification, server-side audit log comparison, cross-referencing with contemporaneous project-management records, and file-system metadata analysis — to confirm that the repository's commit history has not been altered, backdated, or tampered with. (Rourke Decl. ¶¶ 6–12.) The 14,208 commits spanning February 2020 through October 2022 are authentic and unmodified. (Id. ¶ 12.) Luminos has not challenged the integrity of the repository or the reliability of Brindoval's forensic analysis, and no basis for such a challenge exists in the record.
Declarant testimony: no access or awareness. Beyond the timeline evidence, the declarations of Redstone's creative personnel affirmatively establish that the creative team was unaware of Shardfall Chronicles during the initial design phases of Ironclad Dominion. Jordan Kessler attests that he first became aware of Shardfall Chronicles "well after the initial design phases of Ironclad Dominion were complete" and that the game played no role in the creative development of Ironclad Dominion. (Kessler Decl. ¶ 14.) Seo-Yeon Park attests that she developed her character and environmental designs "from original references and internal creative briefs" and that she "did not access, play, reference, or draw upon Shardfall Chronicles or any other third-party game in creating the assets at issue." (Park Decl. ¶ 16.)
Absence of evidence of access or contact. Luminos has produced no evidence — none — that any Redstone employee or contractor accessed, played, or was even aware of Shardfall Chronicles prior to the completion of the challenged assets. The depositions of Luminos's own principals confirm this absence. Tobias Crane testified at his deposition on July 22, 2024, that he had no knowledge of any communication or contact between Luminos and any Redstone employee or contractor prior to the filing of this lawsuit. (Crane Dep. at 48:3–49:12.) Elara Whitfield similarly testified at her deposition on July 29, 2024, that she was unaware of any connection or communication between Luminos and Redstone, and that she had no evidence that anyone at Redstone had ever played or seen Shardfall Chronicles prior to the lawsuit. (Whitfield Dep. at 62:7–63:19.)
Redstone also produced 42,316 pages of documents in discovery — including internal communications, design documents, personnel records, and project-management logs — and not a single document contains any reference to Shardfall Chronicles, Luminos Interactive, Tobias Crane, Elara Whitfield, or any other Luminos employee or product. (Defendant's discovery Responses, July 8, 2024; RGC-000001–RGC-042316.)
Conclusion on independent creation. The evidence of independent creation is overwhelming and uncontroverted. Redstone's development of the challenged assets began over thirteen months before Shardfall Chronicles was publicly available. The integrity of the timeline evidence has been forensically verified. Redstone's creative personnel attest, under penalty of perjury, that they did not access, reference, or copy from Shardfall Chronicles. Luminos's own principals confirm the absence of any communication or contact between the companies. And the 42,316-page