1033-00004 · Redstone Gaming Corp · Motions & Briefs

reply-brief-in-support-of-msj.docx DOCUMENT Litigation

11 / 12 ← → ✕

Contract analysis Extract to table

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEVADA

DEFENDANT REDSTONE GAMING CORP.'S REPLY IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT

Filed: September 30, 2024

TABLE OF AUTHORITIES

Cases.

Statutes and Rules

Other Authorities.

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 to a jury. Rather, the Opposition confirms what Redstone's opening brief established: the undisputed record compels judgment as a matter of law in Redstone's favor on all claims.

Luminos's Opposition rests on three fundamentally flawed pillars, each of which crumbles upon examination. First, Luminos mischaracterizes the expert analysis of Dr. Calvin Yates — an independent digital forensics consultant and former Associate Professor at the Riverbend Institute of Technology — as creating a genuine factual dispute on the question of substantial similarity. As demonstrated below, Dr. Yates's methodology is riddled with deficiencies that render his conclusions unreliable under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and, even if his methodology were accepted arguendo, his conclusions do not address the dispositive question of whether the similarities reflect protectable expression as opposed to unprotectable genre conventions. Second, Luminos offers a selective and misleading reading of the four fair-use factors under 17 U.S.C. § 107 that ignores dispositive undisputed evidence — most notably, the uncontested fact that Shardfall Chronicles sales increased eighteen percent (18%) following the release of Ironclad Dominion, entirely negating any theory of market harm. Third, Luminos's counsel at Hargrove, Tanaka & Whitmore LLP cites inapposite case law involving wholesale copying of entire works or verbatim reproduction of source code — circumstances bearing no resemblance to the facts of this case — and fails to meaningfully distinguish those authorities from the record here.

Against this backdrop, Redstone's evidence remains uncontested on the key points that matter most. The ironclad-main Git repository — the primary version-control repository for the Ironclad Dominion project — contains 14,208 verified commits with a first commit dated February 12, 2020, more than thirteen months before Shardfall Chronicles was even released on March 22, 2021. This repository was authenticated by Brindoval Forensic Consulting LLC's lead consultant, Nathan Rourke, through a comprehensive forensic examination of cryptographic hash chains, timestamp integrity, and commit provenance. Luminos has not challenged the authenticity of the repository. Luminos has not offered any counter-forensic analysis. And Luminos has not disputed Brindoval's methodology or conclusions. The repository evidence alone establishes independent creation as a matter of undisputed fact.

Moreover, the four-factor fair-use analysis, as set forth in Redstone's opening brief filed September 9, 2024, weighs decisively in Redstone's favor across every meaningful dimension. Factor One favors Redstone because Ironclad Dominion is a highly transformative work that repurposes generic dark-fantasy motifs into an entirely different mechanized-steampunk aesthetic and multiplayer tactical gameplay framework. Factor Two, while slightly favoring Luminos given the creative nature of Shardfall Chronicles, cannot overcome the combined weight of the remaining factors. Factor Three favors Redstone because only 4 of the 37 challenged assets show any meaningful similarity, and none exceeds a 52% similarity index — a de minimis quantum by any measure. Factor Four weighs strongly in Redstone's favor because Luminos has failed to demonstrate any cognizable market harm, and the undisputed record actually demonstrates the opposite.

For all these reasons, and those set forth more fully below, summary judgment should be granted and the case dismissed with prejudice.

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 fails to raise a genuine dispute of material fact on this point.

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, ECF No. 87-3.) Each commit in the repository is cryptographically linked to its predecessor through SHA-1 hash values, creating an immutable chain of provenance that cannot be altered or backdated without detection. (Id. ¶ 11.) Mr. Rourke, a certified forensic examiner with seventeen years of experience in digital forensics and version-control analysis, examined the entire repository and confirmed the integrity of its timestamp records, hash chains, and commit metadata. (Id. ¶¶ 3–6, 12–14.)

Brindoval's forensic analysis specifically verified that the character silhouettes, environmental textures, and user-interface concepts at issue in this litigation — the very assets that form the basis of Luminos's claims — were created and iteratively developed beginning in the first quarter of 2020. (Rourke Decl. ¶¶ 15–22.) The first character-silhouette sketches for what would become the Ironclad Dominion "Sentinel" and "Forgekeeper" archetypes appear in commit entries dated March 4, 2020, and March 19, 2020, respectively. (Id. ¶ 16.) The initial environmental texture sets for the "Ashveil Foundry" and "Crystalline Underdepth" environments were committed on April 11, 2020, and May 2, 2020, respectively. (Id. ¶ 18.) And the earliest iteration of the contextual radial HUD design — which Luminos erroneously claims was copied from Shardfall Chronicles' single-player radial menu — was committed on June 17, 2020. (Id. ¶ 20.) All of these dates precede the release of Shardfall Chronicles on March 22, 2021, by approximately nine to thirteen months. This timeline is devastating to Luminos's copying theory, and Luminos has offered no evidence to undermine it.

Luminos's Opposition does not contest the authenticity of the ironclad-main repository. It does not offer any counter-forensic analysis challenging Brindoval's findings. It does not dispute Brindoval's methodology, qualifications, or conclusions. And it does not suggest — let alone demonstrate — that the repository's cryptographic hash chains were tampered with, manipulated, or otherwise unreliable. This silence is dispositive. Where a party moving for summary judgment has produced unrebutted forensic evidence of independent creation predating the copyrighted work's release, the non-movant must come forward with specific evidence creating a genuine dispute — not vague speculation. See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Luminos has failed to do so.

The testimony of Redstone's key creative personnel further corroborates the repository evidence and remains uncontradicted. Jordan Kessler, Vice President of Creative Development at Redstone Gaming Corp., testified under oath during his deposition on August 5, 2024, that the Ironclad Dominion project was conceived in late 2019 and that formal production began in February 2020 with the assembly of a fourteen-person core art team. (Kessler Dep. Tr. at 47:3–49:18, ECF No. 87-5.) Mr. Kessler testified that he had no awareness of Shardfall Chronicles until the present lawsuit was filed in January 2024, and that no one on the Ironclad Dominion creative team had, to his knowledge, played, reviewed, or discussed Shardfall Chronicles during the game's development cycle. (Id. at 62:7–64:12.)

Seo-Yeon Park, Lead Character Artist for Ironclad Dominion, was deposed on August 12, 2024, and similarly testified that she had never played, viewed, or received any materials related to Shardfall Chronicles during the character-design process. (Park Dep. Tr. at 33:14–35:22, ECF No. 87-6.) Ms. Park testified that her character designs drew from publicly available historical references to medieval plate armor, Renaissance-era mechanical illustrations by Leonardo da Vinci, and concept art she had previously created for an unrelated personal project in 2018. (Id. at 36:8–41:15.) She further testified that the "Sentinel" archetype's distinctive pauldron design — one of the 37 challenged assets — was inspired by Japanese samurai sode shoulder guards, not by any design in Shardfall Chronicles. (Id. at 42:3–44:9.)

Importantly, the depositions that Luminos itself conducted of Redstone's personnel failed to uncover any evidence of access to or copying from Shardfall Chronicles. The deposition of Tobias Crane, Senior Environment Artist, conducted on July 22, 2024, produced no testimony suggesting that Mr. Crane had ever accessed, viewed, or been provided with any Shardfall Chronicles assets, concept art, or reference materials. (Crane Dep. Tr. at 28:4–31:19, ECF No. 87-7.) The deposition of Elara Whitfield, Technical Art Director, conducted on July 29, 2024, similarly failed to produce any evidence that any channel of communication — formal or informal — existed between the Ironclad Dominion and Shardfall Chronicles development teams, or that any Redstone employee had accessed Luminos's proprietary materials. (Whitfield Dep. Tr. at 55:11–59:7, ECF No. 87-8.)

Faced with this uncontested evidence of independent creation, Luminos retreats to the vague assertion that "access can be inferred from the commercial availability" of Shardfall Chronicles after its March 2021 release. (Opp. at 12.) This argument is legally insufficient to create a triable issue of fact. The Ninth Circuit has consistently held that mere availability of a work in the commercial marketplace does not, standing alone, establish access for purposes of a copyright infringement claim. See Three Boys Music Corp. v. Bolton, 212 F.3d 477, 482 (9th Cir. 2000) (requiring proof that the alleged infringer had a "reasonable opportunity" to view or hear the copyrighted work). Here, the inference of access is particularly implausible for two independent reasons.

First, the critical design decisions and asset creation at issue in this case occurred between February 2020 and early 2021 — a period during which Shardfall Chronicles had not yet been released and was therefore not commercially available. The repository evidence conclusively establishes that the challenged assets were conceived, designed, and substantially completed before March 22, 2021. Even if some refinements occurred after that date, Luminos has produced no evidence that any post-March-2021 modifications to the challenged assets were influenced by Shardfall Chronicles or that the modifications altered the assets in ways that made them more similar to Shardfall Chronicles assets. The timeline simply does not support an access theory.

Second, even setting aside the pre-release timeline, Luminos's access theory is unavailing because Shardfall Chronicles was an indie title with a modest commercial profile. With approximately 185,000 lifetime unit sales and estimated gross revenue of approximately $4.62 million, Shardfall Chronicles did not achieve the kind of widespread commercial penetration that might support a bare inference of access. Cf. Three Boys Music Corp., 212 F.3d at 482–83 (finding access where the copyrighted song had achieved widespread popular success and extensive radio airplay). This is not a case where the copyrighted work was so pervasive in the relevant market that access can be reasonably presumed. To the contrary, Shardfall Chronicles occupied a niche segment of the indie gaming market, and Luminos has offered no evidence — no emails, no Meridian Solutions messages, no social media posts, no purchase records, no download logs — suggesting that any member of Redstone's development team ever encountered it.

In sum, the ironclad-main repository evidence, corroborated by the sworn testimony of multiple Redstone creative personnel and unrebutted by any counter-forensic analysis, establishes independent creation as a matter of undisputed fact. Luminos cannot overcome this evidence through speculation, conjecture, or bare assertions of commercial availability. See Mattel, Inc. v. MGA Entm't, Inc., 616 F.3d 904, 913–14 (9th Cir. 2010) (affirming that independent creation is a complete defense to copyright infringement).

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.

The doctrine of striking similarity permits an inference of copying only where the similarity between two works is "so striking that the possibilities of independent creation, coincidence and prior common source are, as a practical matter, precluded." Skidmore v. Led Zeppelin, 952 F.3d 1051, 1065 (9th Cir. 2020) (en banc); see also 4 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 13.03[A] (2024). The threshold is exacting, and it cannot be met here.

Dr. Ingrid Lautner — a professor of computer graphics and digital media analysis at the California Institute of Technology with over twenty years of experience in visual-asset comparison methodologies — subjected all 37 of the challenged assets to rigorous pixel-level visual comparison using industry-standard perceptual hashing, SSIM (structural similarity index measure), and color histogram analysis. (Lautner Expert Report, Aug. 19, 2024, ¶¶ 28–45, ECF No. 87-9; Lautner Rebuttal Report, Sept. 3, 2024, ¶¶ 12–31, ECF No. 87-10.) Dr. Lautner's analysis yielded the following critical findings:

• Only 4 of the 37 challenged assets exhibited a similarity index above 40%, the threshold recognized in the digital forensics literature as warranting further analysis for potential copying. (Lautner Rebuttal Report ¶ 18.)

• The highest similarity index among all 37 challenged assets was 52%, observed on a single environmental texture depicting crystalline cave formations. (Id. ¶ 19.)

• The remaining 33 assets — fully 89% of the challenged works — had similarity indices below 40%, indicating that any visual overlap reflects generic fantasy-RPG design conventions rather than evidence of copying. (Id. ¶ 20.)

These findings are fatal to Luminos's striking-similarity theory. Where 89% of the challenged assets fall below recognized similarity thresholds, and the maximum similarity on any individual asset is a modest 52%, it is impossible to conclude that the works are so strikingly similar as to preclude independent creation as a practical matter. See Rentmeester v. Sterling Reach Partners LLC, 883 F.3d 1111, 1118–19 (9th Cir. 2018) (holding that similarities attributable to common subject matter, common compositional conventions, or the limited number of ways to express an idea do not support an inference of copying); Funky Films, Inc. v. Time Warner Entm't Co., 462 F.3d 1072, 1077–78 (9th Cir. 2006) (affirming summary judgment where similarities between two works reflected common genre tropes rather than copying of protectable expression).

Moreover, Dr. Lautner explained in her rebuttal report that the 52% similarity index observed on the crystalline cave texture is precisely the type of convergence one would expect in the fantasy-RPG genre, given the limited visual vocabulary available for depicting crystalline formations. (Lautner Rebuttal Report ¶¶ 21–25.) Dr. Lautner surveyed over forty commercially available fantasy-RPG titles released between 2015 and 2023 and found that crystalline cave textures across these titles exhibited an average pairwise similarity index of 47%, with several pairs of unrelated titles exceeding 55%. (Id. ¶ 23.) The 52% figure for the Shardfall Chronicles/Ironclad Dominion comparison falls squarely within the expected range for independently created works in this genre and does not suggest copying.

Luminos has not contested Dr. Lautner's qualifications. Luminos has not challenged her methodology. And Luminos has offered no competing analysis showing that the 37 challenged assets exhibit the kind of idiosyncratic, particularized similarity — as opposed to generic genre convergence — that the striking similarity doctrine requires. See Swirsky v. Carey, 376 F.3d 841, 849 (9th Cir. 2004) (requiring that similarity reflect "original" or "unique" elements rather than commonplace features). The striking-similarity argument fails as a matter of law.

B. Luminos's Reliance on Dr. Calvin Yates's Expert Opinions Is Misplaced

Luminos's Opposition devotes considerable attention to the expert report of Dr. Calvin Yates, an independent digital forensics consultant and former Associate Professor at the Riverbend Institute of Technology, whom Luminos retained to opine on the visual similarity between the 37 challenged assets. (Opp. at 8–14.) Luminos characterizes Dr. Yates's analysis as creating a genuine factual dispute precluding summary judgment. It does not. Dr. Yates's methodology is fundamentally flawed, and his conclusions do not withstand scrutiny under Daubert or the governing copyright framework.

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. Yates applied a proprietary color-space normalization algorithm that collapsed distinct chromatic variations into uniform color bands before performing his pixel-level comparison. (Lautner Rebuttal Report ¶¶ 34–40.) As Dr. Lautner explained, this approach artificially inflates similarity scores by treating visually distinguishable colors — for example, a warm amber (#D4A017) and a cool bronze (#CD7F32) — as identical. (Id. ¶ 36.) The effect is significant: when Dr. Lautner replicated Dr. Yates's analysis using his stated normalization parameters, she found that his method systematically inflated similarity scores by an average of 14.7 percentage points relative to industry-standard CIELAB color-space analysis. (Id. ¶ 38.) Applied to Dr. Yates's reported scores, this inflation accounts for the discrepancy between his findings and Dr. Lautner's findings: the four assets that Dr. Yates reported as exceeding 70% similarity fall to the mid-50s or below when analyzed using standard methodology. (Id. ¶ 39.) Luminos's Opposition does not contest this finding, does not defend Dr. Yates's non-standard normalization approach, and does not offer any explanation for why Dr. Yates departed from accepted color-space analysis protocols.

Failure to Account for Procedural Generation Convergence. Dr. Yates's comparison methodology treats each pixel as an independent data point without any contextual analysis of how the textures were generated. (Lautner Rebuttal Report ¶¶ 41–45.) This approach ignores the well-documented phenomenon — extensively studied in the computer graphics literature — that procedurally generated textures in the fantasy-RPG genre converge on similar visual outputs when drawing from common reference palettes. (Id. ¶ 42.) Crystalline formations, metallic surfaces, volcanic rock textures, and forested environments are all commonly generated using procedural algorithms (such as Perlin noise, Voronoi tessellation, and fractal subdivision) that inherently produce similar outputs across different implementations. (Id. ¶ 43.) Dr. Yates's failure to control for this phenomenon means that his similarity scores capture not evidence of copying but rather the expected baseline similarity produced by common procedural-generation techniques applied to common subject matter. (Id. ¶ 44.) Luminos's Opposition offers no response to this criticism.

Incompatible Resolution Comparison. Dr. Yates compared Shardfall Chronicles' 1024×1024 pixel textures against downsampled versions of Ironclad Dominion's 4096×4096 pixel textures. (Lautner Rebuttal Report ¶¶ 46–50.) This downsampling — a sixteen-fold reduction in total pixel count — strips away the granular detail that differentiates the two works at native resolution. (Id. ¶ 47.) As Dr. Lautner demonstrated through a controlled comparison, analyzing the same Ironclad Dominion textures at their native 4096×4096 resolution against the Shardfall Chronicles textures at 1024×1024 resolution (Unampledampled for comparison purposes using bicubic interpolation) reduced similarity scores by an average of 11.3 percentage points, because the fine-grained detail visible at higher resolution reveals substantial differences in brushwork, noise patterns, and edge characteristics that are invisible at the downsampled resolution Dr. Yates used. (Id. ¶¶ 48–49.) Dr. Yates's decision to compare at incompatible resolutions — rather than at native resolution or after controlled, equivalent resampling — introduced a systematic bias that inflated his similarity findings.

Failure to Examine Asset Metadata and Version-Control Provenance. Finally, Dr. Yates did not examine the underlying asset metadata — including creation dates, modification histories, software tool signatures, and version-control provenance — for any of the 37 challenged assets. (Lautner Rebuttal Report ¶¶ 51–55.) This omission rendered his comparison entirely decontextualized from the creation timeline. (Id. ¶ 52.) A visual comparison without temporal context cannot distinguish between copying and independent creation; it can only identify that two works bear some degree of visual resemblance. (Id. ¶ 53.) Given that the ironclad-main repository provides a complete, cryptographically verified provenance chain for every challenged asset — establishing that each was created before Shardfall Chronicles was released — Dr. Yates's failure to consult this evidence is a glaring methodological omission. (Id. ¶ 54.) Luminos does not explain why Dr. Yates ignored the repository evidence, nor does it argue that the repository evidence is unreliable.

Taken together, these four deficiencies render Dr. Yates's similarity scores unreliable as a basis for establishing substantial similarity or copying. His methodology suffers from systematic inflation biases, a failure to control for known confounding variables, and a deliberate disregard of contextual evidence that directly bears on the question his analysis purports to address.

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 Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), expert testimony must be both reliable and relevant — that is, it must be grounded in sufficient facts and reliable methodology, and it must "fit" the issues in the case. Fed. R. Evid. 702. An expert opinion on visual similarity in a copyright case must go beyond raw similarity percentages and address whether the observed similarities reflect protectable creative expression or, instead, unprotectable ideas, functional elements, or standard genre conventions. See Cavalier v. Random House, Inc., 297 F.3d 815, 822–23 (9th Cir. 2002).

Dr. Yates's analysis fails this "fit" requirement. His report computes similarity scores for the 37 challenged assets but does not analyze whether the features contributing to those scores — the color palettes, silhouette proportions, texture patterns, and interface layouts — are protectable expression under copyright law or unprotectable elements falling within the scènes à faire doctrine. (Lautner Rebuttal Report ¶¶ 56–58.) Critically, Dr. Yates conceded during the expert exchange process that he did not survey the broader universe of fantasy-RPG visual conventions to establish a baseline for what constitutes protectable expression versus unprotectable genre convention. (Yates Expert Report, Aug. 19, 2024, at 47 n.12, ECF No. 92-4 ("The scope of this analysis is limited to a pairwise comparison of the identified assets and does not include a survey of third-party works.").)

This concession is fatal to the reliability and relevance of Dr. Yates's conclusions. Without a baseline understanding of the visual conventions that pervade the fantasy-RPG genre, Dr. Yates cannot — and does not — distinguish between similarities that reflect copying of protectable expression and similarities that reflect the independent application of common genre tropes. His similarity percentages are therefore unreliable for the ultimate question of copyright infringement, which requires a showing of substantial similarity as to protectable elements, not merely similarity in the abstract. See Rentmeester, 883 F.3d at 1118–19.

By contrast, Dr. Lautner conducted precisely the genre-convention analysis that Dr. Yates omitted. Her survey of over forty commercially available fantasy-RPG titles established empirical baselines for the visual features at issue — crystalline textures, metallic armor silhouettes, radial interface designs, and environmental art depicting forges, caverns, and ruins — and demonstrated that the similarities between Shardfall Chronicles and Ironclad Dominion fall within the expected range for independently created works in the genre. (Lautner Expert Report ¶¶ 50–72; Lautner Rebuttal Report ¶¶ 21–25.) Luminos has not challenged this genre-convention analysis, and it stands unrebutted.

In short, Dr. Yates's report provides raw similarity numbers without the analytical framework necessary to make those numbers meaningful in a copyright infringement case. His testimony does not create a genuine dispute of material fact because it does not address whether the observed similarities involve protectable expression — the only type of similarity that matters.

C. The Four Fair-Use Factors Under 17 U.S.C. § 107 Weigh Decisively in Redstone's Favor

Redstone's opening brief demonstrated that all four statutory fair-use factors weigh in its favor. Luminos's Opposition does not alter this conclusion. To the contrary, the Opposition's arguments on fair use misstate the governing legal standards, ignore dispositive undisputed evidence, and confirm the weakness of Luminos's position.

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 finding of transformativeness. (Opp. at 17–18.) This argument fundamentally misstates the law.

The Supreme Court has repeatedly emphasized that the commercial nature of a use is not dispositive of the first fair-use factor. In Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 584 (1994), the Court expressly rejected the presumption that commercial use is unfair, holding 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." The Court reiterated this principle in Calderon Corporation v. Drayton & Co., 593 U.S. 1, 33–34 (2021), holding that Severin Industries's concededly commercial use of Java API declarations was transformative because Severin Industries used the declarations "in a different context (smartphones) and to create a different platform for a different computing environment."

The central inquiry under Factor One is whether the secondary work "adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message." Campbell, 510 U.S. at 579. That inquiry is not close here. Ironclad Dominion repurposes generic dark-fantasy motifs — the only elements of Shardfall Chronicles that bear any resemblance to Redstone's work — into a mechanized-steampunk aesthetic with original narrative framing, a fundamentally different game structure, and a contextual radial HUD that differs in both function and design from Shardfall Chronicles' single-player radial menu.

The differences between the two works are pervasive and structural. Shardfall Chronicles is a single-player action-RPG in which a lone protagonist navigates a hand-crafted dark-fantasy world. Ironclad Dominion is a AAA multiplayer tactical RPG in which teams of players compete in dynamically generated mechanized-fantasy environments, employing squad-based tactical mechanics that have no analogue in Shardfall Chronicles. The narrative frameworks are entirely distinct: Shardfall Chronicles centers on a redemption arc involving a fallen knight seeking to reassemble magical crystal shards, while Ironclad Dominion involves rival industrial factions competing for control of mechanized war machines in a post-cataclysm setting. The visual aesthetics, while both broadly within the fantasy genre, diverge sharply: Shardfall Chronicles employs a traditional high-fantasy color palette with ethereal lighting and organic environmental design, while Ironclad Dominion features a gritty, desaturated industrial aesthetic with pervasive mechanical elements, steam effects, and iron-wrought architectural design.

Luminos's attempt to equate the two games' radial menus is particularly unpersuasive. (Opp. at 18–19.) The Ironclad Dominion contextual radial HUD is a multiplayer tactical tool that dynamically displays team-based ability loadouts, real-time tactical overlays, and squad communication functions. The Shardfall Chronicles radial menu is a conventional single-player inventory and ability selection interface. The two share only the radial layout — a functional design choice that is ubiquitous in RPGs and is dictated by the ergonomic constraints of controller-based navigation. Radial navigation interfaces have been a standard feature in role-playing games for decades, appearing in titles ranging from Mass Effect (2007) to The Elder Scrolls V: Skyrim (2011) to Dragon Age: Inquisition (2014) to Diablo IV (2023). Luminos's Opposition conspicuously fails to address this point. A radial menu is a functional, unprotectable design element, and its use in Ironclad Dominion does not diminish the transformative character of the work. See Sega Enters. Ltd. v. Accolade, Inc., 977 F.2d 1510, 1523 (9th Cir. 1992) (recognizing that functional elements receive diminished copyright protection).

This factor weighs strongly in Redstone's favor, as argued in the opening brief and unrefuted by Luminos's Opposition.

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, 495 U.S. 207, 237–38 (1990).

Luminos's Opposition devotes several pages to belaboring this conceded point. (Opp. at 20–22.) But a slight tilt on Factor Two cannot overcome the decisive weight of the remaining three factors. The Supreme Court has recognized that Factor Two "is not much help" in cases involving creative works and "has rarely played a significant role in the determination of a fair use dispute." Severin Industries, 593 U.S. at 32 (internal quotation marks omitted); Campbell, 510 U.S. at 586 (same). This case is no exception.

Moreover, Luminos's reliance on its copyright registration — U.S. Copyright Registration No. VA 2-254-781, registered June 8, 2021 — does not advance its argument. The registration covers Shardfall Chronicles as an audiovisual work as a whole; it does not establish protectability for individual generic design elements extracted from the work, such as crystalline cave textures, radial menu layouts, or medieval plate-armor silhouettes. A copyright registration creates a presumption of validity for the registered work in its entirety, but it does not immunize every constituent element from the application of the scènes à faire doctrine or the idea-expression distinction. Luminos's attempt to leverage its registration into per-element protectability is legally unsound.

This factor weighs slightly in Luminos's favor, but it does not alter the overall fair-use calculus.

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 evidence and is contradicted by the undisputed facts.

As a threshold matter, Luminos has not demonstrated that any of the 37 challenged assets constitutes "the heart" of Shardfall Chronicles in either a quantitative or qualitative sense. The "heart of the work" doctrine applies where the secondary use appropriates the most distinctive, memorable, or commercially valuable portion of the original — the element that gives the original its unique value and appeal. See Harper & Row, 471 U.S. at 564–65. Luminos offers no evidence — no player surveys, no critical reviews, no marketing analyses — demonstrating that any of the 37 challenged assets is the element that drives consumer demand for Shardfall Chronicles. To the contrary, Shardfall Chronicles' appeal, as reflected in its Steam store page, marketing materials, and critical reception, is attributable to its narrative design, gameplay mechanics, and overall atmospheric presentation — none of which are at issue in this case.

Dr. Lautner's analysis further undermines the "heart" argument by establishing that only 4 of the 37 challenged assets exceeded the 40% similarity threshold, with a maximum similarity index of 52%. (Lautner Rebuttal Report ¶¶ 18–19.) The overwhelming majority of the challenged assets — 33 of 37 — are not meaningfully similar to Shardfall Chronicles assets at all. It is difficult to see how assets that are not even substantially similar to their alleged counterparts can be said to constitute "the heart" of the copyrighted work.

Luminos's damages expert relied on financial statements prepared by Whitmore & Pine CPAs to quantify the value of the challenged assets, but those financial statements do not attribute revenue to any particular visual asset or subset of assets. (Whitmore & Pine Financial Statements, FY 2021–2023, ECF No. 92-8.) The statements report aggregate revenue figures for Shardfall Chronicles as a whole; they do not break down revenue by asset, asset category, or design element. Luminos has therefore failed to demonstrate, through its own financial evidence, that the 37 challenged assets are responsible for any identifiable portion of Shardfall Chronicles' revenue or commercial appeal. Without such a showing, the "heart" argument is pure assertion.

The quantitative overlap is also de minimis relative to each work's totality. Ironclad Dominion contains thousands of unique visual assets across its mechanized-fantasy environments, including character models, environmental textures, user-interface elements, particle effects, lighting setups, and cinematic sequences. The 37 challenged assets represent a negligible fraction of the Ironclad Dominion asset library — less than one percent of the work's total visual output. Even on Shardfall Chronicles' side of the equation, 37 assets constitute a small fraction of the total visual content of an action-RPG, which typically comprises hundreds or thousands of distinct visual assets. See Wall Data Inc. v. Los Angeles Cnty. Sheriff's Dep't, 447 F.3d 769, 778 (9th Cir. 2006) (assessing the amount used in relation to the copyrighted work as a whole).

This factor weighs in Redstone's favor.

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 LLC (55 West Monroe Street, Suite 2300, Chicago, Illinois 60603), that Luminos has suffered no cognizable market harm as a result of Ironclad Dominion's release. (Chu Rebuttal Report, Sept. 3, 2024, ¶¶ 14–38, ECF No. 87-12.)

The undisputed facts are stark. Ironclad Dominion is a AAA multiplayer tactical RPG that generated $312 million in Year-1 revenue following its release on November 14, 2022. It was developed by a team of over 200 professionals over approximately two and a half years, with a development budget exceeding $85 million. It was published by Redstone Gaming Corp. and distributed through major digital storefronts and console platforms worldwide. By contrast, Shardfall Chronicles is an indie single-player action-RPG with approximately 185,000 lifetime unit sales at a manufacturer's suggested retail price of $24.99, yielding estimated gross revenue of approximately $4.62 million over its lifetime. It was developed by a small team at Luminos Interactive LLC, a Texas limited liability company with annual revenue of approximately $2.1 million in fiscal year 2023.

These two products serve non-overlapping market segments. Ironclad Dominion targets the AAA multiplayer gaming market, competing with titles such as Destiny 2, Final Fantasy XIV, and Diablo IV. Shardfall Chronicles occupies the indie single-player RPG market, competing with titles such as Hollow Knight, Dead Cells, and Hades. The price points differ ($59.99 vs. $24.99), the platform distribution differs (cross-platform AAA release vs. PC-primary indie release), and the player demographics differ (competitive multiplayer audience vs. narrative-focused single-player audience). Luminos has not offered any evidence — no market analysis, no consumer survey, no economic expert testimony — demonstrating that Ironclad Dominion and Shardfall Chronicles compete for the same consumer dollar or that any consumer elected to purchase Ironclad Dominion instead of Shardfall Chronicles. (Chu Rebuttal Report ¶¶ 20–25.)

Far from demonstrating market harm, the record shows the opposite. Shardfall Chronicles' unit sales actually increased by eighteen percent (18%) in the six months following Ironclad Dominion's release in November 2022. (Chu Rebuttal Report ¶ 28.) Specifically, Shardfall Chronicles sold approximately 8,400 units per month in the six months preceding Ironclad Dominion's launch (May 2022 through October 2022), and approximately 9,912 units per month in the six months following the launch (November 2022 through April 2023). (Id. ¶¶ 28–29.) Dr. Chu concluded that this increase was likely attributable to increased visibility for the fantasy-RPG genre as a whole following Ironclad Dominion's heavily marketed release — a rising-tide effect that benefited, rather than harmed, Shardfall Chronicles. (Id. ¶ 30.) Luminos has offered no evidence to the contrary. This undisputed fact entirely negates Luminos's market-harm theory.

Luminos's claimed damages of $28.5 million — calculated as $312 million in Ironclad Dominion Year-1 revenue multiplied by a 9.13% apportioned-profits factor — are speculative and unsupported. (Opp. at 26–27.) The 9.13% apportionment figure has no basis in the record. Luminos's damages expert derived it by dividing the 37 challenged assets by what he characterized as the 405 "primary visual assets" in Ironclad Dominion (37 ÷ 405 = 9.13%). (Chu Rebuttal Report ¶ 33.) But this crude calculation treats all visual assets as fungible and equally valuable, ignoring the reality that Ironclad Dominion contains thousands of visual assets, not 405, and that the 37 challenged assets are not shown to contribute any measurable portion of the game's commercial appeal or revenue. (Id. ¶¶ 34–35.) Dr. Chu identified at least 3,847 distinct visual assets in the Ironclad Dominion asset library, making the denominator used by Luminos's expert off by nearly an order of magnitude. (Id. ¶ 36.)

Moreover, Luminos has not demonstrated that any consumer purchased Ironclad Dominion because of the 37 allegedly infringing assets. No survey evidence has been presented. No conjoint analysis has been conducted. No documentary evidence links consumer purchasing decisions to any of the 37 challenged visual elements. The $28.5 million damages figure is therefore entirely disconnected from any actual harm and represents precisely the kind of speculative damages claim that summary judgment is designed to prevent.

The speculative nature of the damages claim is further underscored by its disproportionality: $28.5 million is more than thirteen times Luminos's total annual revenue of approximately $2.1 million in fiscal year 2023, and more than six times Shardfall Chronicles' estimated total lifetime gross revenue of approximately $4.62 million. A damages theory that would award a plaintiff more than six times the total lifetime revenue of the work allegedly infringed upon — based on a crude apportionment of the defendant's revenue with no demonstrated causal connection — cannot withstand scrutiny.

This factor weighs strongly in Redstone's favor.

D. Luminos's Cited Authorities Are Readily Distinguishable

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 the present dispute.

Blizzard Entertainment, Inc. v. Lilith Games (Shanghai) Co., No. 3:15-cv-04084 (N.D. Cal. 2017). Luminos cites Blizzard for the proposition that visual similarities between video game assets can support an infringement claim. (Opp. at 7.) But Blizzard involved allegations that the defendant had engaged in the verbatim copying of source code and near-identical reproduction of character models, animations, and user-interface elements — not a comparison of generic visual conventions between works in the same genre. The court in Blizzard found that the defendant's character models were pixel-for-pixel reproductions of the plaintiff's models, with similarity indices exceeding 95% on multiple assets. That factual scenario bears no resemblance to the present case, where the maximum similarity index on any challenged asset is 52%, and only 4 of 37 assets exceed the 40% similarity threshold. Blizzard is inapposite.

Coquico, Inc. v. Rodriguez-Miranda, 562 F.3d 62 (1st Cir. 2009). Luminos cites Coquico for the proposition that circumstantial evidence of access, combined with substantial similarity, can create a triable issue of fact. (Opp. at 14–15.) But Coquico involved a derivative work that preserved the same narrative structure, character identities, and plot elements as the original — the defendant had created a competing television program using the same characters, storylines, and dramatic situations as the plaintiff's copyrighted program bible. Unlike Coquico, Ironclad Dominion features entirely different characters, storylines, gameplay mechanics, and narrative premises from Shardfall Chronicles. There is no allegation here that Redstone copied characters, plot, dialogue, or narrative structure. The similarities at issue are limited to 37 generic visual assets, and even those similarities are modest. Coquico's holding is inapplicable to the facts of this case.

Luminos also relies on authority that predates the modern transformative-use framework and is therefore of limited relevance to the fair-use analysis. (Opp. at 25.) The cases cited by Luminos in support of its Factor One argument were decided before Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994), established the transformative-use inquiry as the central focus of the first fair-use factor. Those pre-Campbell authorities applied a framework that has been superseded by the Supreme Court's subsequent jurisprudence in Campbell and, more recently, in Calderon Corporation v. Drayton & Co., 593 U.S. 1 (2021). Under current law, the commercial nature of a use does not create a presumption against fair use, and the transformative character of the secondary work is the paramount consideration. Luminos's reliance on outdated authority cannot carry the day.

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 are standard, stock, or common to a particular topic or that necessarily follow from a common theme or setting." Satava v. Lowry, 323 F.3d 805, 810 (9th Cir. 2003); see also 17 U.S.C. § 102(b) (excluding ideas, procedures, processes, and methods of operation from copyright protection). The Ninth Circuit has consistently applied this doctrine to preclude infringement claims based on the use of genre conventions and standard design elements. See Cavalier v. Random House, Inc., 297 F.3d 815, 823 (9th Cir. 2002); Bikram's Yoga Coll. of India, L.P. v. Evolation Yoga, LLC, 803 F.3d 1032, 1040–41 (9th Cir. 2015).

The visual elements at issue in this case are quintessential scènes à faire of the fantasy-RPG genre. Crystalline cave textures, radial menu interfaces, and medieval plate-armor silhouettes are standard tropes that appear across dozens — if not hundreds — of commercially released fantasy-RPG titles. Dr. Lautner's expert analysis documented this genre-wide convergence in detail, surveying over forty commercially available fantasy-RPG titles released between 2015 and 2023, including both AAA and indie productions. (Lautner Expert Report ¶¶ 50–72.) Her survey revealed the following:

• Crystalline cave textures appeared in 34 of the 40 surveyed titles (85%), with average pairwise similarity indices between 41% and 55% — comparable to or exceeding the 52% maximum observed between Shardfall Chronicles and Ironclad Dominion. (Lautner Expert Report ¶ 55.)

• Radial navigation interfaces appeared in 28 of the 40 surveyed titles (70%), including both single-player and multiplayer games, across range sub-genres. (Id. ¶ 58.) The layout conventions for radial menus are driven by ergonomic considerations (thumb-stick range of motion, button-mapping efficiency) and are substantially identical across titles.

• Medieval plate-armor character silhouettes — including pauldrons, greaves, gauntlets, and visored helms — appeared in 38 of the 40 surveyed titles (95%). (Id. ¶ 62.) The limited vocabulary of historical armor design, combined with the genre expectation that characters wear plate armor, produces substantial visual convergence across independently created works.

These elements are the stock-in-trade of the fantasy-RPG genre. They are not protectable expression, and their appearance in Ironclad Dominion does not constitute infringement. See Skidmore v. Led Zeppelin, 952 F.3d 1051, 1069 (9th Cir. 2020) (en banc) (holding that common musical elements are not protectable under the scènes à faire doctrine); Satava, 323 F.3d at 811 (holding that elements standard to a particular artistic genre are not protectable); Meshwerks, Inc. v. Northpoint Enterprises Motor Sales U.S.A., Inc., 528 F.3d 1258, 1265 (10th Cir. 2008) (denying copyright protection to digital models that faithfully reproduced the unprotectable contours of real-world objects).

Luminos's Opposition does not meaningfully engage with the scènes à faire defense. It does not dispute that crystalline cave textures, radial menus, and medieval armor silhouettes are genre conventions. It does not offer any authority suggesting that these generic elements are protectable. And it does not identify any specific creative choice within the 37 challenged assets that transcends genre convention and constitutes protectable original expression. This failure is telling and is, standing alone, sufficient to dispose of Luminos's claims as to the generic fantasy elements that constitute the bulk of its case.

E. No Genuine Dispute of Material Fact Exists — Summary Judgment Is Warranted

Viewed in its entirety, the record in this case presents no genuine dispute of material fact requiring submission to a jury. The following material facts are undisputed:

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 Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (holding that the non-moving party must "go beyond the pleadings and by her own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial" (internal quotation marks omitted)). Instead, Luminos has offered (1) an expert report with demonstrably flawed methodology that does not address whether the observed similarities involve protectable expression, (2) a bare assertion that access can be inferred from commercial availability — without any direct or circumstantial evidence of actual access, (3) a market-harm theory contradicted by the undisputed sales data, (4) a speculative damages figure more than thirteen times its annual revenue, and (5) inapposite case law involving wholesale copying scenarios with no factual analogue here.

The four-factor fair-use test, considered as a whole, compels judgment as a matter of law in Redstone's favor. Three of the four factors weigh in Redstone's favor, including the two most important factors — the transformative purpose and character of the use (Factor One) and the absence of market harm (Factor Four). The one factor that weighs slightly in Luminos's favor (Factor Two, the creative nature of the copyrighted work) does not overcome the combined weight of the remaining factors. Summary judgment is warranted.

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 similarity and copying, and award Redstone Gaming Corp. such further relief as the Court deems just and proper, including an award of costs.

Redstone further respectfully notes that oral argument on this Motion is currently scheduled for October 15, 2024, before the Honorable Rebecca W. Langford, and Redstone believes that oral argument will assist the Court in resolving the issues presented. Redstone's counsel will be prepared to address all issues raised in the parties' briefing at that time.

Respectfully submitted,

CALDERWOOD & HARKNESS LLP

By: ________

Catherine Bloom Responsible Partner Nevada Bar No. 14892 California Bar No. 247831 600 South Grand Avenue, Suite 4400 Los Angeles, California 90071 Telephone: (213) 555-4200 Facsimile: (213) 555-4201

Email: cbloom@calderwoodharkness.com

Of Counsel: THORNGATE & ASSOCIATES, PC

Patricia Thorngate Local Nevada Counsel Nevada Bar No. 9174 300 South Fourth Street, Suite 1100 Las Vegas, Nevada 89101 Telephone: (702) 555-8300 Facsimile: (702) 555-8301

Email: pthorngate@thorngatelaw.com

Attorneys for Defendant Redstone Gaming Corp.

Dated: September 30, 2024

Prepared by: Omar Siddiqui, Lead Associate, Calderwood & Harkness LLP, and Christy Bauer, Working Associate, Calderwood & Harkness LLP

Matter No. 1033-00004

CERTIFICATE OF SERVICE

I, Omar Siddiqui, hereby certify that on September 30, 2024, a true and correct copy of the foregoing Defendant Redstone Gaming Corp.'s Reply in Support of Its Motion for Summary Judgment was served via the Court's CM/ECF electronic filing system, which will send a Notice of Electronic Filing to all counsel of record who have registered for electronic filing in this case, including:

Daniel Hargrove, Esq. Megan Forsyth, Esq. HARGROVE, TANAKA & WHITMORE LLP 1400 Congress Avenue, Suite 900 Austin, Texas 78701 Telephone: (512) 555-7100 Facsimile: (512) 555-7101

Email: dhargrove@htwlaw.com

Email: mforsyth@htwlaw.com

Counsel for Plaintiff Luminos Interactive LLC

________________________________________

Omar Siddiqui Calderwood & Harkness LLP 600 South Grand Avenue, Suite 4400 Los Angeles, California 90071

LUMINOS INTERACTIVE LLC, a Texas limited liability company,	Case No.: 2:24-cv-00587-RWL
Plaintiff,	Hon. Rebecca W. Langford

REDSTONE GAMING CORP., a Delaware corporation,

Defendant.

Page(s)

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986)	1, 27
Bikram's Yoga Coll. of India, L.P. v. Evolation Yoga, LLC, 803 F.3d 1032 (9th Cir. 2015)	25
Blizzard Entm't, Inc. v. Lilith Games (Shanghai) Co., No. 3:15-cv-04084 (N.D. Cal. 2017)	23
Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994)	14, 15, 17, 20
Cavalier v. Random House, Inc., 297 F.3d 815 (9th Cir. 2002)	7, 25
Celotex Corp. v. Catrett, 477 U.S. 317 (1986)	1, 27
Coquico, Inc. v. Rodriguez-Miranda, 562 F.3d 62 (1st Cir. 2009)	24
Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993)	9, 12, 13
Funky Films, Inc. v. Time Warner Entm't Co., 462 F.3d 1072 (9th Cir. 2006)	7, 8
Calderon Corporation v. Drayton & Co., 593 U.S. 1 (2021)	14, 15, 18
Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539 (1985)	18, 20
Mattel, Inc. v. MGA Entm't, Inc., 616 F.3d 904 (9th Cir. 2010)	3, 5
Meshwerks, Inc. v. Northpoint Enterprises Motor Sales U.S.A., Inc., 528 F.3d 1258 (10th Cir. 2008)	26
Rentmeester v. Sterling Reach Partners LLC, 883 F.3d 1111 (9th Cir. 2018)	7, 8, 25
Satava v. Lowry, 323 F.3d 805 (9th Cir. 2003)	25, 26
Sega Enters. Ltd. v. Accolade, Inc., 977 F.2d 1510 (9th Cir. 1992)	15
Skidmore v. Led Zeppelin, 952 F.3d 1051 (9th Cir. 2020) (en banc)	5, 7, 25, 26
Stewart v. Abend, 495 U.S. 207 (1990)	17
Swirsky v. Carey, 376 F.3d 841 (9th Cir. 2004)	8
Three Boys Music Corp. v. Bolton, 212 F.3d 477 (9th Cir. 2000)	5, 6
Wall Data Inc. v. Los Angeles Cnty. Sheriff's Dep't, 447 F.3d 769 (9th Cir. 2006)	18

Page(s)

17 U.S.C. § 102(b)	25
17 U.S.C. § 107	1, 14, 29
Fed. R. Civ. P. 56	1, 27, 28
Fed. R. Evid. 702	9, 12

Page(s)

4 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 13.03[A] (2024)	7
4 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 13.03[F] (2024)	25

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEVADA
DEFENDANT REDSTONE GAMING CORP.'S REPLY IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT
Filed: September 30, 2024
TABLE OF AUTHORITIES
Cases.
Statutes and Rules
Other Authorities.
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 to a jury. Rather, the Opposition confirms what Redstone's opening brief established: the undisputed record compels judgment as a matter of law in Redstone's favor on all claims.
Luminos's Opposition rests on three fundamentally flawed pillars, each of which crumbles upon examination. First, Luminos mischaracterizes the expert analysis of Dr. Calvin Yates — an independent digital forensics consultant and former Associate Professor at the Riverbend Institute of Technology — as creating a genuine factual dispute on the question of substantial similarity. As demonstrated below, Dr. Yates's methodology is riddled with deficiencies that render his conclusions unreliable under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and, even if his methodology were accepted arguendo, his conclusions do not address the dispositive question of whether the similarities reflect protectable expression as opposed to unprotectable genre conventions. Second, Luminos offers a selective and misleading reading of the four fair-use factors under 17 U.S.C. § 107 that ignores dispositive undisputed evidence — most notably, the uncontested fact that Shardfall Chronicles sales increased eighteen percent (18%) following the release of Ironclad Dominion, entirely negating any theory of market harm. Third, Luminos's counsel at Hargrove, Tanaka & Whitmore LLP cites inapposite case law involving wholesale copying of entire works or verbatim reproduction of source code — circumstances bearing no resemblance to the facts of this case — and fails to meaningfully distinguish those authorities from the record here.
Against this backdrop, Redstone's evidence remains uncontested on the key points that matter most. The ironclad-main Git repository — the primary version-control repository for the Ironclad Dominion project — contains 14,208 verified commits with a first commit dated February 12, 2020, more than thirteen months before Shardfall Chronicles was even released on March 22, 2021. This repository was authenticated by Brindoval Forensic Consulting LLC's lead consultant, Nathan Rourke, through a comprehensive forensic examination of cryptographic hash chains, timestamp integrity, and commit provenance. Luminos has not challenged the authenticity of the repository. Luminos has not offered any counter-forensic analysis. And Luminos has not disputed Brindoval's methodology or conclusions. The repository evidence alone establishes independent creation as a matter of undisputed fact.
Moreover, the four-factor fair-use analysis, as set forth in Redstone's opening brief filed September 9, 2024, weighs decisively in Redstone's favor across every meaningful dimension. Factor One favors Redstone because Ironclad Dominion is a highly transformative work that repurposes generic dark-fantasy motifs into an entirely different mechanized-steampunk aesthetic and multiplayer tactical gameplay framework. Factor Two, while slightly favoring Luminos given the creative nature of Shardfall Chronicles, cannot overcome the combined weight of the remaining factors. Factor Three favors Redstone because only 4 of the 37 challenged assets show any meaningful similarity, and none exceeds a 52% similarity index — a de minimis quantum by any measure. Factor Four weighs strongly in Redstone's favor because Luminos has failed to demonstrate any cognizable market harm, and the undisputed record actually demonstrates the opposite.
For all these reasons, and those set forth more fully below, summary judgment should be granted and the case dismissed with prejudice.
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 fails to raise a genuine dispute of material fact on this point.
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, ECF No. 87-3.) Each commit in the repository is cryptographically linked to its predecessor through SHA-1 hash values, creating an immutable chain of provenance that cannot be altered or backdated without detection. (Id. ¶ 11.) Mr. Rourke, a certified forensic examiner with seventeen years of experience in digital forensics and version-control analysis, examined the entire repository and confirmed the integrity of its timestamp records, hash chains, and commit metadata. (Id. ¶¶ 3–6, 12–14.)
Brindoval's forensic analysis specifically verified that the character silhouettes, environmental textures, and user-interface concepts at issue in this litigation — the very assets that form the basis of Luminos's claims — were created and iteratively developed beginning in the first quarter of 2020. (Rourke Decl. ¶¶ 15–22.) The first character-silhouette sketches for what would become the Ironclad Dominion "Sentinel" and "Forgekeeper" archetypes appear in commit entries dated March 4, 2020, and March 19, 2020, respectively. (Id. ¶ 16.) The initial environmental texture sets for the "Ashveil Foundry" and "Crystalline Underdepth" environments were committed on April 11, 2020, and May 2, 2020, respectively. (Id. ¶ 18.) And the earliest iteration of the contextual radial HUD design — which Luminos erroneously claims was copied from Shardfall Chronicles' single-player radial menu — was committed on June 17, 2020. (Id. ¶ 20.) All of these dates precede the release of Shardfall Chronicles on March 22, 2021, by approximately nine to thirteen months. This timeline is devastating to Luminos's copying theory, and Luminos has offered no evidence to undermine it.
Luminos's Opposition does not contest the authenticity of the ironclad-main repository. It does not offer any counter-forensic analysis challenging Brindoval's findings. It does not dispute Brindoval's methodology, qualifications, or conclusions. And it does not suggest — let alone demonstrate — that the repository's cryptographic hash chains were tampered with, manipulated, or otherwise unreliable. This silence is dispositive. Where a party moving for summary judgment has produced unrebutted forensic evidence of independent creation predating the copyrighted work's release, the non-movant must come forward with specific evidence creating a genuine dispute — not vague speculation. See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Luminos has failed to do so.
The testimony of Redstone's key creative personnel further corroborates the repository evidence and remains uncontradicted. Jordan Kessler, Vice President of Creative Development at Redstone Gaming Corp., testified under oath during his deposition on August 5, 2024, that the Ironclad Dominion project was conceived in late 2019 and that formal production began in February 2020 with the assembly of a fourteen-person core art team. (Kessler Dep. Tr. at 47:3–49:18, ECF No. 87-5.) Mr. Kessler testified that he had no awareness of Shardfall Chronicles until the present lawsuit was filed in January 2024, and that no one on the Ironclad Dominion creative team had, to his knowledge, played, reviewed, or discussed Shardfall Chronicles during the game's development cycle. (Id. at 62:7–64:12.)
Seo-Yeon Park, Lead Character Artist for Ironclad Dominion, was deposed on August 12, 2024, and similarly testified that she had never played, viewed, or received any materials related to Shardfall Chronicles during the character-design process. (Park Dep. Tr. at 33:14–35:22, ECF No. 87-6.) Ms. Park testified that her character designs drew from publicly available historical references to medieval plate armor, Renaissance-era mechanical illustrations by Leonardo da Vinci, and concept art she had previously created for an unrelated personal project in 2018. (Id. at 36:8–41:15.) She further testified that the "Sentinel" archetype's distinctive pauldron design — one of the 37 challenged assets — was inspired by Japanese samurai sode shoulder guards, not by any design in Shardfall Chronicles. (Id. at 42:3–44:9.)
Importantly, the depositions that Luminos itself conducted of Redstone's personnel failed to uncover any evidence of access to or copying from Shardfall Chronicles. The deposition of Tobias Crane, Senior Environment Artist, conducted on July 22, 2024, produced no testimony suggesting that Mr. Crane had ever accessed, viewed, or been provided with any Shardfall Chronicles assets, concept art, or reference materials. (Crane Dep. Tr. at 28:4–31:19, ECF No. 87-7.) The deposition of Elara Whitfield, Technical Art Director, conducted on July 29, 2024, similarly failed to produce any evidence that any channel of communication — formal or informal — existed between the Ironclad Dominion and Shardfall Chronicles development teams, or that any Redstone employee had accessed Luminos's proprietary materials. (Whitfield Dep. Tr. at 55:11–59:7, ECF No. 87-8.)
Faced with this uncontested evidence of independent creation, Luminos retreats to the vague assertion that "access can be inferred from the commercial availability" of Shardfall Chronicles after its March 2021 release. (Opp. at 12.) This argument is legally insufficient to create a triable issue of fact. The Ninth Circuit has consistently held that mere availability of a work in the commercial marketplace does not, standing alone, establish access for purposes of a copyright infringement claim. See Three Boys Music Corp. v. Bolton, 212 F.3d 477, 482 (9th Cir. 2000) (requiring proof that the alleged infringer had a "reasonable opportunity" to view or hear the copyrighted work). Here, the inference of access is particularly implausible for two independent reasons.
First, the critical design decisions and asset creation at issue in this case occurred between February 2020 and early 2021 — a period during which Shardfall Chronicles had not yet been released and was therefore not commercially available. The repository evidence conclusively establishes that the challenged assets were conceived, designed, and substantially completed before March 22, 2021. Even if some refinements occurred after that date, Luminos has produced no evidence that any post-March-2021 modifications to the challenged assets were influenced by Shardfall Chronicles or that the modifications altered the assets in ways that made them more similar to Shardfall Chronicles assets. The timeline simply does not support an access theory.
Second, even setting aside the pre-release timeline, Luminos's access theory is unavailing because Shardfall Chronicles was an indie title with a modest commercial profile. With approximately 185,000 lifetime unit sales and estimated gross revenue of approximately $4.62 million, Shardfall Chronicles did not achieve the kind of widespread commercial penetration that might support a bare inference of access. Cf. Three Boys Music Corp., 212 F.3d at 482–83 (finding access where the copyrighted song had achieved widespread popular success and extensive radio airplay). This is not a case where the copyrighted work was so pervasive in the relevant market that access can be reasonably presumed. To the contrary, Shardfall Chronicles occupied a niche segment of the indie gaming market, and Luminos has offered no evidence — no emails, no Meridian Solutions messages, no social media posts, no purchase records, no download logs — suggesting that any member of Redstone's development team ever encountered it.
In sum, the ironclad-main repository evidence, corroborated by the sworn testimony of multiple Redstone creative personnel and unrebutted by any counter-forensic analysis, establishes independent creation as a matter of undisputed fact. Luminos cannot overcome this evidence through speculation, conjecture, or bare assertions of commercial availability. See Mattel, Inc. v. MGA Entm't, Inc., 616 F.3d 904, 913–14 (9th Cir. 2010) (affirming that independent creation is a complete defense to copyright infringement).
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.
The doctrine of striking similarity permits an inference of copying only where the similarity between two works is "so striking that the possibilities of independent creation, coincidence and prior common source are, as a practical matter, precluded." Skidmore v. Led Zeppelin, 952 F.3d 1051, 1065 (9th Cir. 2020) (en banc); see also 4 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 13.03[A] (2024). The threshold is exacting, and it cannot be met here.
Dr. Ingrid Lautner — a professor of computer graphics and digital media analysis at the California Institute of Technology with over twenty years of experience in visual-asset comparison methodologies — subjected all 37 of the challenged assets to rigorous pixel-level visual comparison using industry-standard perceptual hashing, SSIM (structural similarity index measure), and color histogram analysis. (Lautner Expert Report, Aug. 19, 2024, ¶¶ 28–45, ECF No. 87-9; Lautner Rebuttal Report, Sept. 3, 2024, ¶¶ 12–31, ECF No. 87-10.) Dr. Lautner's analysis yielded the following critical findings:
• Only 4 of the 37 challenged assets exhibited a similarity index above 40%, the threshold recognized in the digital forensics literature as warranting further analysis for potential copying. (Lautner Rebuttal Report ¶ 18.)
• The highest similarity index among all 37 challenged assets was 52%, observed on a single environmental texture depicting crystalline cave formations. (Id. ¶ 19.)
• The remaining 33 assets — fully 89% of the challenged works — had similarity indices below 40%, indicating that any visual overlap reflects generic fantasy-RPG design conventions rather than evidence of copying. (Id. ¶ 20.)
These findings are fatal to Luminos's striking-similarity theory. Where 89% of the challenged assets fall below recognized similarity thresholds, and the maximum similarity on any individual asset is a modest 52%, it is impossible to conclude that the works are so strikingly similar as to preclude independent creation as a practical matter. See Rentmeester v. Sterling Reach Partners LLC, 883 F.3d 1111, 1118–19 (9th Cir. 2018) (holding that similarities attributable to common subject matter, common compositional conventions, or the limited number of ways to express an idea do not support an inference of copying); Funky Films, Inc. v. Time Warner Entm't Co., 462 F.3d 1072, 1077–78 (9th Cir. 2006) (affirming summary judgment where similarities between two works reflected common genre tropes rather than copying of protectable expression).
Moreover, Dr. Lautner explained in her rebuttal report that the 52% similarity index observed on the crystalline cave texture is precisely the type of convergence one would expect in the fantasy-RPG genre, given the limited visual vocabulary available for depicting crystalline formations. (Lautner Rebuttal Report ¶¶ 21–25.) Dr. Lautner surveyed over forty commercially available fantasy-RPG titles released between 2015 and 2023 and found that crystalline cave textures across these titles exhibited an average pairwise similarity index of 47%, with several pairs of unrelated titles exceeding 55%. (Id. ¶ 23.) The 52% figure for the Shardfall Chronicles/Ironclad Dominion comparison falls squarely within the expected range for independently created works in this genre and does not suggest copying.
Luminos has not contested Dr. Lautner's qualifications. Luminos has not challenged her methodology. And Luminos has offered no competing analysis showing that the 37 challenged assets exhibit the kind of idiosyncratic, particularized similarity — as opposed to generic genre convergence — that the striking similarity doctrine requires. See Swirsky v. Carey, 376 F.3d 841, 849 (9th Cir. 2004) (requiring that similarity reflect "original" or "unique" elements rather than commonplace features). The striking-similarity argument fails as a matter of law.
B. Luminos's Reliance on Dr. Calvin Yates's Expert Opinions Is Misplaced
Luminos's Opposition devotes considerable attention to the expert report of Dr. Calvin Yates, an independent digital forensics consultant and former Associate Professor at the Riverbend Institute of Technology, whom Luminos retained to opine on the visual similarity between the 37 challenged assets. (Opp. at 8–14.) Luminos characterizes Dr. Yates's analysis as creating a genuine factual dispute precluding summary judgment. It does not. Dr. Yates's methodology is fundamentally flawed, and his conclusions do not withstand scrutiny under Daubert or the governing copyright framework.
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. Yates applied a proprietary color-space normalization algorithm that collapsed distinct chromatic variations into uniform color bands before performing his pixel-level comparison. (Lautner Rebuttal Report ¶¶ 34–40.) As Dr. Lautner explained, this approach artificially inflates similarity scores by treating visually distinguishable colors — for example, a warm amber (#D4A017) and a cool bronze (#CD7F32) — as identical. (Id. ¶ 36.) The effect is significant: when Dr. Lautner replicated Dr. Yates's analysis using his stated normalization parameters, she found that his method systematically inflated similarity scores by an average of 14.7 percentage points relative to industry-standard CIELAB color-space analysis. (Id. ¶ 38.) Applied to Dr. Yates's reported scores, this inflation accounts for the discrepancy between his findings and Dr. Lautner's findings: the four assets that Dr. Yates reported as exceeding 70% similarity fall to the mid-50s or below when analyzed using standard methodology. (Id. ¶ 39.) Luminos's Opposition does not contest this finding, does not defend Dr. Yates's non-standard normalization approach, and does not offer any explanation for why Dr. Yates departed from accepted color-space analysis protocols.
Failure to Account for Procedural Generation Convergence. Dr. Yates's comparison methodology treats each pixel as an independent data point without any contextual analysis of how the textures were generated. (Lautner Rebuttal Report ¶¶ 41–45.) This approach ignores the well-documented phenomenon — extensively studied in the computer graphics literature — that procedurally generated textures in the fantasy-RPG genre converge on similar visual outputs when drawing from common reference palettes. (Id. ¶ 42.) Crystalline formations, metallic surfaces, volcanic rock textures, and forested environments are all commonly generated using procedural algorithms (such as Perlin noise, Voronoi tessellation, and fractal subdivision) that inherently produce similar outputs across different implementations. (Id. ¶ 43.) Dr. Yates's failure to control for this phenomenon means that his similarity scores capture not evidence of copying but rather the expected baseline similarity produced by common procedural-generation techniques applied to common subject matter. (Id. ¶ 44.) Luminos's Opposition offers no response to this criticism.
Incompatible Resolution Comparison. Dr. Yates compared Shardfall Chronicles' 1024×1024 pixel textures against downsampled versions of Ironclad Dominion's 4096×4096 pixel textures. (Lautner Rebuttal Report ¶¶ 46–50.) This downsampling — a sixteen-fold reduction in total pixel count — strips away the granular detail that differentiates the two works at native resolution. (Id. ¶ 47.) As Dr. Lautner demonstrated through a controlled comparison, analyzing the same Ironclad Dominion textures at their native 4096×4096 resolution against the Shardfall Chronicles textures at 1024×1024 resolution (Unampledampled for comparison purposes using bicubic interpolation) reduced similarity scores by an average of 11.3 percentage points, because the fine-grained detail visible at higher resolution reveals substantial differences in brushwork, noise patterns, and edge characteristics that are invisible at the downsampled resolution Dr. Yates used. (Id. ¶¶ 48–49.) Dr. Yates's decision to compare at incompatible resolutions — rather than at native resolution or after controlled, equivalent resampling — introduced a systematic bias that inflated his similarity findings.
Failure to Examine Asset Metadata and Version-Control Provenance. Finally, Dr. Yates did not examine the underlying asset metadata — including creation dates, modification histories, software tool signatures, and version-control provenance — for any of the 37 challenged assets. (Lautner Rebuttal Report ¶¶ 51–55.) This omission rendered his comparison entirely decontextualized from the creation timeline. (Id. ¶ 52.) A visual comparison without temporal context cannot distinguish between copying and independent creation; it can only identify that two works bear some degree of visual resemblance. (Id. ¶ 53.) Given that the ironclad-main repository provides a complete, cryptographically verified provenance chain for every challenged asset — establishing that each was created before Shardfall Chronicles was released — Dr. Yates's failure to consult this evidence is a glaring methodological omission. (Id. ¶ 54.) Luminos does not explain why Dr. Yates ignored the repository evidence, nor does it argue that the repository evidence is unreliable.
Taken together, these four deficiencies render Dr. Yates's similarity scores unreliable as a basis for establishing substantial similarity or copying. His methodology suffers from systematic inflation biases, a failure to control for known confounding variables, and a deliberate disregard of contextual evidence that directly bears on the question his analysis purports to address.
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 Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), expert testimony must be both reliable and relevant — that is, it must be grounded in sufficient facts and reliable methodology, and it must "fit" the issues in the case. Fed. R. Evid. 702. An expert opinion on visual similarity in a copyright case must go beyond raw similarity percentages and address whether the observed similarities reflect protectable creative expression or, instead, unprotectable ideas, functional elements, or standard genre conventions. See Cavalier v. Random House, Inc., 297 F.3d 815, 822–23 (9th Cir. 2002).
Dr. Yates's analysis fails this "fit" requirement. His report computes similarity scores for the 37 challenged assets but does not analyze whether the features contributing to those scores — the color palettes, silhouette proportions, texture patterns, and interface layouts — are protectable expression under copyright law or unprotectable elements falling within the scènes à faire doctrine. (Lautner Rebuttal Report ¶¶ 56–58.) Critically, Dr. Yates conceded during the expert exchange process that he did not survey the broader universe of fantasy-RPG visual conventions to establish a baseline for what constitutes protectable expression versus unprotectable genre convention. (Yates Expert Report, Aug. 19, 2024, at 47 n.12, ECF No. 92-4 ("The scope of this analysis is limited to a pairwise comparison of the identified assets and does not include a survey of third-party works.").)
This concession is fatal to the reliability and relevance of Dr. Yates's conclusions. Without a baseline understanding of the visual conventions that pervade the fantasy-RPG genre, Dr. Yates cannot — and does not — distinguish between similarities that reflect copying of protectable expression and similarities that reflect the independent application of common genre tropes. His similarity percentages are therefore unreliable for the ultimate question of copyright infringement, which requires a showing of substantial similarity as to protectable elements, not merely similarity in the abstract. See Rentmeester, 883 F.3d at 1118–19.
By contrast, Dr. Lautner conducted precisely the genre-convention analysis that Dr. Yates omitted. Her survey of over forty commercially available fantasy-RPG titles established empirical baselines for the visual features at issue — crystalline textures, metallic armor silhouettes, radial interface designs, and environmental art depicting forges, caverns, and ruins — and demonstrated that the similarities between Shardfall Chronicles and Ironclad Dominion fall within the expected range for independently created works in the genre. (Lautner Expert Report ¶¶ 50–72; Lautner Rebuttal Report ¶¶ 21–25.) Luminos has not challenged this genre-convention analysis, and it stands unrebutted.
In short, Dr. Yates's report provides raw similarity numbers without the analytical framework necessary to make those numbers meaningful in a copyright infringement case. His testimony does not create a genuine dispute of material fact because it does not address whether the observed similarities involve protectable expression — the only type of similarity that matters.
C. The Four Fair-Use Factors Under 17 U.S.C. § 107 Weigh Decisively in Redstone's Favor
Redstone's opening brief demonstrated that all four statutory fair-use factors weigh in its favor. Luminos's Opposition does not alter this conclusion. To the contrary, the Opposition's arguments on fair use misstate the governing legal standards, ignore dispositive undisputed evidence, and confirm the weakness of Luminos's position.
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 finding of transformativeness. (Opp. at 17–18.) This argument fundamentally misstates the law.
The Supreme Court has repeatedly emphasized that the commercial nature of a use is not dispositive of the first fair-use factor. In Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 584 (1994), the Court expressly rejected the presumption that commercial use is unfair, holding 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." The Court reiterated this principle in Calderon Corporation v. Drayton & Co., 593 U.S. 1, 33–34 (2021), holding that Severin Industries's concededly commercial use of Java API declarations was transformative because Severin Industries used the declarations "in a different context (smartphones) and to create a different platform for a different computing environment."
The central inquiry under Factor One is whether the secondary work "adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message." Campbell, 510 U.S. at 579. That inquiry is not close here. Ironclad Dominion repurposes generic dark-fantasy motifs — the only elements of Shardfall Chronicles that bear any resemblance to Redstone's work — into a mechanized-steampunk aesthetic with original narrative framing, a fundamentally different game structure, and a contextual radial HUD that differs in both function and design from Shardfall Chronicles' single-player radial menu.
The differences between the two works are pervasive and structural. Shardfall Chronicles is a single-player action-RPG in which a lone protagonist navigates a hand-crafted dark-fantasy world. Ironclad Dominion is a AAA multiplayer tactical RPG in which teams of players compete in dynamically generated mechanized-fantasy environments, employing squad-based tactical mechanics that have no analogue in Shardfall Chronicles. The narrative frameworks are entirely distinct: Shardfall Chronicles centers on a redemption arc involving a fallen knight seeking to reassemble magical crystal shards, while Ironclad Dominion involves rival industrial factions competing for control of mechanized war machines in a post-cataclysm setting. The visual aesthetics, while both broadly within the fantasy genre, diverge sharply: Shardfall Chronicles employs a traditional high-fantasy color palette with ethereal lighting and organic environmental design, while Ironclad Dominion features a gritty, desaturated industrial aesthetic with pervasive mechanical elements, steam effects, and iron-wrought architectural design.
Luminos's attempt to equate the two games' radial menus is particularly unpersuasive. (Opp. at 18–19.) The Ironclad Dominion contextual radial HUD is a multiplayer tactical tool that dynamically displays team-based ability loadouts, real-time tactical overlays, and squad communication functions. The Shardfall Chronicles radial menu is a conventional single-player inventory and ability selection interface. The two share only the radial layout — a functional design choice that is ubiquitous in RPGs and is dictated by the ergonomic constraints of controller-based navigation. Radial navigation interfaces have been a standard feature in role-playing games for decades, appearing in titles ranging from Mass Effect (2007) to The Elder Scrolls V: Skyrim (2011) to Dragon Age: Inquisition (2014) to Diablo IV (2023). Luminos's Opposition conspicuously fails to address this point. A radial menu is a functional, unprotectable design element, and its use in Ironclad Dominion does not diminish the transformative character of the work. See Sega Enters. Ltd. v. Accolade, Inc., 977 F.2d 1510, 1523 (9th Cir. 1992) (recognizing that functional elements receive diminished copyright protection).
This factor weighs strongly in Redstone's favor, as argued in the opening brief and unrefuted by Luminos's Opposition.
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, 495 U.S. 207, 237–38 (1990).
Luminos's Opposition devotes several pages to belaboring this conceded point. (Opp. at 20–22.) But a slight tilt on Factor Two cannot overcome the decisive weight of the remaining three factors. The Supreme Court has recognized that Factor Two "is not much help" in cases involving creative works and "has rarely played a significant role in the determination of a fair use dispute." Severin Industries, 593 U.S. at 32 (internal quotation marks omitted); Campbell, 510 U.S. at 586 (same). This case is no exception.
Moreover, Luminos's reliance on its copyright registration — U.S. Copyright Registration No. VA 2-254-781, registered June 8, 2021 — does not advance its argument. The registration covers Shardfall Chronicles as an audiovisual work as a whole; it does not establish protectability for individual generic design elements extracted from the work, such as crystalline cave textures, radial menu layouts, or medieval plate-armor silhouettes. A copyright registration creates a presumption of validity for the registered work in its entirety, but it does not immunize every constituent element from the application of the scènes à faire doctrine or the idea-expression distinction. Luminos's attempt to leverage its registration into per-element protectability is legally unsound.
This factor weighs slightly in Luminos's favor, but it does not alter the overall fair-use calculus.
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 evidence and is contradicted by the undisputed facts.
As a threshold matter, Luminos has not demonstrated that any of the 37 challenged assets constitutes "the heart" of Shardfall Chronicles in either a quantitative or qualitative sense. The "heart of the work" doctrine applies where the secondary use appropriates the most distinctive, memorable, or commercially valuable portion of the original — the element that gives the original its unique value and appeal. See Harper & Row, 471 U.S. at 564–65. Luminos offers no evidence — no player surveys, no critical reviews, no marketing analyses — demonstrating that any of the 37 challenged assets is the element that drives consumer demand for Shardfall Chronicles. To the contrary, Shardfall Chronicles' appeal, as reflected in its Steam store page, marketing materials, and critical reception, is attributable to its narrative design, gameplay mechanics, and overall atmospheric presentation — none of which are at issue in this case.
Dr. Lautner's analysis further undermines the "heart" argument by establishing that only 4 of the 37 challenged assets exceeded the 40% similarity threshold, with a maximum similarity index of 52%. (Lautner Rebuttal Report ¶¶ 18–19.) The overwhelming majority of the challenged assets — 33 of 37 — are not meaningfully similar to Shardfall Chronicles assets at all. It is difficult to see how assets that are not even substantially similar to their alleged counterparts can be said to constitute "the heart" of the copyrighted work.
Luminos's damages expert relied on financial statements prepared by Whitmore & Pine CPAs to quantify the value of the challenged assets, but those financial statements do not attribute revenue to any particular visual asset or subset of assets. (Whitmore & Pine Financial Statements, FY 2021–2023, ECF No. 92-8.) The statements report aggregate revenue figures for Shardfall Chronicles as a whole; they do not break down revenue by asset, asset category, or design element. Luminos has therefore failed to demonstrate, through its own financial evidence, that the 37 challenged assets are responsible for any identifiable portion of Shardfall Chronicles' revenue or commercial appeal. Without such a showing, the "heart" argument is pure assertion.
The quantitative overlap is also de minimis relative to each work's totality. Ironclad Dominion contains thousands of unique visual assets across its mechanized-fantasy environments, including character models, environmental textures, user-interface elements, particle effects, lighting setups, and cinematic sequences. The 37 challenged assets represent a negligible fraction of the Ironclad Dominion asset library — less than one percent of the work's total visual output. Even on Shardfall Chronicles' side of the equation, 37 assets constitute a small fraction of the total visual content of an action-RPG, which typically comprises hundreds or thousands of distinct visual assets. See Wall Data Inc. v. Los Angeles Cnty. Sheriff's Dep't, 447 F.3d 769, 778 (9th Cir. 2006) (assessing the amount used in relation to the copyrighted work as a whole).
This factor weighs in Redstone's favor.
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 LLC (55 West Monroe Street, Suite 2300, Chicago, Illinois 60603), that Luminos has suffered no cognizable market harm as a result of Ironclad Dominion's release. (Chu Rebuttal Report, Sept. 3, 2024, ¶¶ 14–38, ECF No. 87-12.)
The undisputed facts are stark. Ironclad Dominion is a AAA multiplayer tactical RPG that generated $312 million in Year-1 revenue following its release on November 14, 2022. It was developed by a team of over 200 professionals over approximately two and a half years, with a development budget exceeding $85 million. It was published by Redstone Gaming Corp. and distributed through major digital storefronts and console platforms worldwide. By contrast, Shardfall Chronicles is an indie single-player action-RPG with approximately 185,000 lifetime unit sales at a manufacturer's suggested retail price of $24.99, yielding estimated gross revenue of approximately $4.62 million over its lifetime. It was developed by a small team at Luminos Interactive LLC, a Texas limited liability company with annual revenue of approximately $2.1 million in fiscal year 2023.
These two products serve non-overlapping market segments. Ironclad Dominion targets the AAA multiplayer gaming market, competing with titles such as Destiny 2, Final Fantasy XIV, and Diablo IV. Shardfall Chronicles occupies the indie single-player RPG market, competing with titles such as Hollow Knight, Dead Cells, and Hades. The price points differ ($59.99 vs. $24.99), the platform distribution differs (cross-platform AAA release vs. PC-primary indie release), and the player demographics differ (competitive multiplayer audience vs. narrative-focused single-player audience). Luminos has not offered any evidence — no market analysis, no consumer survey, no economic expert testimony — demonstrating that Ironclad Dominion and Shardfall Chronicles compete for the same consumer dollar or that any consumer elected to purchase Ironclad Dominion instead of Shardfall Chronicles. (Chu Rebuttal Report ¶¶ 20–25.)
Far from demonstrating market harm, the record shows the opposite. Shardfall Chronicles' unit sales actually increased by eighteen percent (18%) in the six months following Ironclad Dominion's release in November 2022. (Chu Rebuttal Report ¶ 28.) Specifically, Shardfall Chronicles sold approximately 8,400 units per month in the six months preceding Ironclad Dominion's launch (May 2022 through October 2022), and approximately 9,912 units per month in the six months following the launch (November 2022 through April 2023). (Id. ¶¶ 28–29.) Dr. Chu concluded that this increase was likely attributable to increased visibility for the fantasy-RPG genre as a whole following Ironclad Dominion's heavily marketed release — a rising-tide effect that benefited, rather than harmed, Shardfall Chronicles. (Id. ¶ 30.) Luminos has offered no evidence to the contrary. This undisputed fact entirely negates Luminos's market-harm theory.
Luminos's claimed damages of $28.5 million — calculated as $312 million in Ironclad Dominion Year-1 revenue multiplied by a 9.13% apportioned-profits factor — are speculative and unsupported. (Opp. at 26–27.) The 9.13% apportionment figure has no basis in the record. Luminos's damages expert derived it by dividing the 37 challenged assets by what he characterized as the 405 "primary visual assets" in Ironclad Dominion (37 ÷ 405 = 9.13%). (Chu Rebuttal Report ¶ 33.) But this crude calculation treats all visual assets as fungible and equally valuable, ignoring the reality that Ironclad Dominion contains thousands of visual assets, not 405, and that the 37 challenged assets are not shown to contribute any measurable portion of the game's commercial appeal or revenue. (Id. ¶¶ 34–35.) Dr. Chu identified at least 3,847 distinct visual assets in the Ironclad Dominion asset library, making the denominator used by Luminos's expert off by nearly an order of magnitude. (Id. ¶ 36.)
Moreover, Luminos has not demonstrated that any consumer purchased Ironclad Dominion because of the 37 allegedly infringing assets. No survey evidence has been presented. No conjoint analysis has been conducted. No documentary evidence links consumer purchasing decisions to any of the 37 challenged visual elements. The $28.5 million damages figure is therefore entirely disconnected from any actual harm and represents precisely the kind of speculative damages claim that summary judgment is designed to prevent.
The speculative nature of the damages claim is further underscored by its disproportionality: $28.5 million is more than thirteen times Luminos's total annual revenue of approximately $2.1 million in fiscal year 2023, and more than six times Shardfall Chronicles' estimated total lifetime gross revenue of approximately $4.62 million. A damages theory that would award a plaintiff more than six times the total lifetime revenue of the work allegedly infringed upon — based on a crude apportionment of the defendant's revenue with no demonstrated causal connection — cannot withstand scrutiny.
This factor weighs strongly in Redstone's favor.
D. Luminos's Cited Authorities Are Readily Distinguishable
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 the present dispute.
Blizzard Entertainment, Inc. v. Lilith Games (Shanghai) Co., No. 3:15-cv-04084 (N.D. Cal. 2017). Luminos cites Blizzard for the proposition that visual similarities between video game assets can support an infringement claim. (Opp. at 7.) But Blizzard involved allegations that the defendant had engaged in the verbatim copying of source code and near-identical reproduction of character models, animations, and user-interface elements — not a comparison of generic visual conventions between works in the same genre. The court in Blizzard found that the defendant's character models were pixel-for-pixel reproductions of the plaintiff's models, with similarity indices exceeding 95% on multiple assets. That factual scenario bears no resemblance to the present case, where the maximum similarity index on any challenged asset is 52%, and only 4 of 37 assets exceed the 40% similarity threshold. Blizzard is inapposite.
Coquico, Inc. v. Rodriguez-Miranda, 562 F.3d 62 (1st Cir. 2009). Luminos cites Coquico for the proposition that circumstantial evidence of access, combined with substantial similarity, can create a triable issue of fact. (Opp. at 14–15.) But Coquico involved a derivative work that preserved the same narrative structure, character identities, and plot elements as the original — the defendant had created a competing television program using the same characters, storylines, and dramatic situations as the plaintiff's copyrighted program bible. Unlike Coquico, Ironclad Dominion features entirely different characters, storylines, gameplay mechanics, and narrative premises from Shardfall Chronicles. There is no allegation here that Redstone copied characters, plot, dialogue, or narrative structure. The similarities at issue are limited to 37 generic visual assets, and even those similarities are modest. Coquico's holding is inapplicable to the facts of this case.
Luminos also relies on authority that predates the modern transformative-use framework and is therefore of limited relevance to the fair-use analysis. (Opp. at 25.) The cases cited by Luminos in support of its Factor One argument were decided before Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994), established the transformative-use inquiry as the central focus of the first fair-use factor. Those pre-Campbell authorities applied a framework that has been superseded by the Supreme Court's subsequent jurisprudence in Campbell and, more recently, in Calderon Corporation v. Drayton & Co., 593 U.S. 1 (2021). Under current law, the commercial nature of a use does not create a presumption against fair use, and the transformative character of the secondary work is the paramount consideration. Luminos's reliance on outdated authority cannot carry the day.
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 are standard, stock, or common to a particular topic or that necessarily follow from a common theme or setting." Satava v. Lowry, 323 F.3d 805, 810 (9th Cir. 2003); see also 17 U.S.C. § 102(b) (excluding ideas, procedures, processes, and methods of operation from copyright protection). The Ninth Circuit has consistently applied this doctrine to preclude infringement claims based on the use of genre conventions and standard design elements. See Cavalier v. Random House, Inc., 297 F.3d 815, 823 (9th Cir. 2002); Bikram's Yoga Coll. of India, L.P. v. Evolation Yoga, LLC, 803 F.3d 1032, 1040–41 (9th Cir. 2015).
The visual elements at issue in this case are quintessential scènes à faire of the fantasy-RPG genre. Crystalline cave textures, radial menu interfaces, and medieval plate-armor silhouettes are standard tropes that appear across dozens — if not hundreds — of commercially released fantasy-RPG titles. Dr. Lautner's expert analysis documented this genre-wide convergence in detail, surveying over forty commercially available fantasy-RPG titles released between 2015 and 2023, including both AAA and indie productions. (Lautner Expert Report ¶¶ 50–72.) Her survey revealed the following:
• Crystalline cave textures appeared in 34 of the 40 surveyed titles (85%), with average pairwise similarity indices between 41% and 55% — comparable to or exceeding the 52% maximum observed between Shardfall Chronicles and Ironclad Dominion. (Lautner Expert Report ¶ 55.)
• Radial navigation interfaces appeared in 28 of the 40 surveyed titles (70%), including both single-player and multiplayer games, across range sub-genres. (Id. ¶ 58.) The layout conventions for radial menus are driven by ergonomic considerations (thumb-stick range of motion, button-mapping efficiency) and are substantially identical across titles.
• Medieval plate-armor character silhouettes — including pauldrons, greaves, gauntlets, and visored helms — appeared in 38 of the 40 surveyed titles (95%). (Id. ¶ 62.) The limited vocabulary of historical armor design, combined with the genre expectation that characters wear plate armor, produces substantial visual convergence across independently created works.
These elements are the stock-in-trade of the fantasy-RPG genre. They are not protectable expression, and their appearance in Ironclad Dominion does not constitute infringement. See Skidmore v. Led Zeppelin, 952 F.3d 1051, 1069 (9th Cir. 2020) (en banc) (holding that common musical elements are not protectable under the scènes à faire doctrine); Satava, 323 F.3d at 811 (holding that elements standard to a particular artistic genre are not protectable); Meshwerks, Inc. v. Northpoint Enterprises Motor Sales U.S.A., Inc., 528 F.3d 1258, 1265 (10th Cir. 2008) (denying copyright protection to digital models that faithfully reproduced the unprotectable contours of real-world objects).
Luminos's Opposition does not meaningfully engage with the scènes à faire defense. It does not dispute that crystalline cave textures, radial menus, and medieval armor silhouettes are genre conventions. It does not offer any authority suggesting that these generic elements are protectable. And it does not identify any specific creative choice within the 37 challenged assets that transcends genre convention and constitutes protectable original expression. This failure is telling and is, standing alone, sufficient to dispose of Luminos's claims as to the generic fantasy elements that constitute the bulk of its case.
E. No Genuine Dispute of Material Fact Exists — Summary Judgment Is Warranted
Viewed in its entirety, the record in this case presents no genuine dispute of material fact requiring submission to a jury. The following material facts are undisputed:
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 Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (holding that the non-moving party must "go beyond the pleadings and by her own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial" (internal quotation marks omitted)). Instead, Luminos has offered (1) an expert report with demonstrably flawed methodology that does not address whether the observed similarities involve protectable expression, (2) a bare assertion that access can be inferred from commercial availability — without any direct or circumstantial evidence of actual access, (3) a market-harm theory contradicted by the undisputed sales data, (4) a speculative damages figure more than thirteen times its annual revenue, and (5) inapposite case law involving wholesale copying scenarios with no factual analogue here.
The four-factor fair-use test, considered as a whole, compels judgment as a matter of law in Redstone's favor. Three of the four factors weigh in Redstone's favor, including the two most important factors — the transformative purpose and character of the use (Factor One) and the absence of market harm (Factor Four). The one factor that weighs slightly in Luminos's favor (Factor Two, the creative nature of the copyrighted work) does not overcome the combined weight of the remaining factors. Summary judgment is warranted.
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 similarity and copying, and award Redstone Gaming Corp. such further relief as the Court deems just and proper, including an award of costs.
Redstone further respectfully notes that oral argument on this Motion is currently scheduled for October 15, 2024, before the Honorable Rebecca W. Langford, and Redstone believes that oral argument will assist the Court in resolving the issues presented. Redstone's counsel will be prepared to address all issues raised in the parties' briefing at that time.
Respectfully submitted,
CALDERWOOD & HARKNESS LLP
By: ________
Catherine Bloom Responsible Partner Nevada Bar No. 14892 California Bar No. 247831 600 South Grand Avenue, Suite 4400 Los Angeles, California 90071 Telephone: (213) 555-4200 Facsimile: (213) 555-4201
Email: cbloom@calderwoodharkness.com
Of Counsel: THORNGATE & ASSOCIATES, PC
Patricia Thorngate Local Nevada Counsel Nevada Bar No. 9174 300 South Fourth Street, Suite 1100 Las Vegas, Nevada 89101 Telephone: (702) 555-8300 Facsimile: (702) 555-8301
Email: pthorngate@thorngatelaw.com
Attorneys for Defendant Redstone Gaming Corp.
Dated: September 30, 2024
Prepared by: Omar Siddiqui, Lead Associate, Calderwood & Harkness LLP, and Christy Bauer, Working Associate, Calderwood & Harkness LLP
Matter No. 1033-00004
CERTIFICATE OF SERVICE
I, Omar Siddiqui, hereby certify that on September 30, 2024, a true and correct copy of the foregoing Defendant Redstone Gaming Corp.'s Reply in Support of Its Motion for Summary Judgment was served via the Court's CM/ECF electronic filing system, which will send a Notice of Electronic Filing to all counsel of record who have registered for electronic filing in this case, including:
Daniel Hargrove, Esq. Megan Forsyth, Esq. HARGROVE, TANAKA & WHITMORE LLP 1400 Congress Avenue, Suite 900 Austin, Texas 78701 Telephone: (512) 555-7100 Facsimile: (512) 555-7101
Email: dhargrove@htwlaw.com
Email: mforsyth@htwlaw.com
Counsel for Plaintiff Luminos Interactive LLC
________________________________________
Omar Siddiqui Calderwood & Harkness LLP 600 South Grand Avenue, Suite 4400 Los Angeles, California 90071
LUMINOS INTERACTIVE LLC, a Texas limited liability company, | Case No.: 2:24-cv-00587-RWL
Plaintiff, | Hon. Rebecca W. Langford
v.
REDSTONE GAMING CORP., a Delaware corporation,
Defendant.
Page(s)
Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) | 1, 27
Bikram's Yoga Coll. of India, L.P. v. Evolation Yoga, LLC, 803 F.3d 1032 (9th Cir. 2015) | 25
Blizzard Entm't, Inc. v. Lilith Games (Shanghai) Co., No. 3:15-cv-04084 (N.D. Cal. 2017) | 23
Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994) | 14, 15, 17, 20
Cavalier v. Random House, Inc., 297 F.3d 815 (9th Cir. 2002) | 7, 25
Celotex Corp. v. Catrett, 477 U.S. 317 (1986) | 1, 27
Coquico, Inc. v. Rodriguez-Miranda, 562 F.3d 62 (1st Cir. 2009) | 24
Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993) | 9, 12, 13
Funky Films, Inc. v. Time Warner Entm't Co., 462 F.3d 1072 (9th Cir. 2006) | 7, 8
Calderon Corporation v. Drayton & Co., 593 U.S. 1 (2021) | 14, 15, 18
Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539 (1985) | 18, 20
Mattel, Inc. v. MGA Entm't, Inc., 616 F.3d 904 (9th Cir. 2010) | 3, 5
Meshwerks, Inc. v. Northpoint Enterprises Motor Sales U.S.A., Inc., 528 F.3d 1258 (10th Cir. 2008) | 26
Rentmeester v. Sterling Reach Partners LLC, 883 F.3d 1111 (9th Cir. 2018) | 7, 8, 25
Satava v. Lowry, 323 F.3d 805 (9th Cir. 2003) | 25, 26
Sega Enters. Ltd. v. Accolade, Inc., 977 F.2d 1510 (9th Cir. 1992) | 15
Skidmore v. Led Zeppelin, 952 F.3d 1051 (9th Cir. 2020) (en banc) | 5, 7, 25, 26
Stewart v. Abend, 495 U.S. 207 (1990) | 17
Swirsky v. Carey, 376 F.3d 841 (9th Cir. 2004) | 8
Three Boys Music Corp. v. Bolton, 212 F.3d 477 (9th Cir. 2000) | 5, 6
Wall Data Inc. v. Los Angeles Cnty. Sheriff's Dep't, 447 F.3d 769 (9th Cir. 2006) | 18
Page(s)
17 U.S.C. § 102(b) | 25
17 U.S.C. § 107 | 1, 14, 29
Fed. R. Civ. P. 56 | 1, 27, 28
Fed. R. Evid. 702 | 9, 12
Page(s)
4 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 13.03[A] (2024) | 7
4 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 13.03[F] (2024) | 25

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEVADA

TABLE OF AUTHORITIES

I. INTRODUCTION

II. ARGUMENT

III. CONCLUSION

CALDERWOOD & HARKNESS LLP

CERTIFICATE OF SERVICE

Record

Parties

Dates

Amounts