1033-00004 · Redstone Gaming Corp · Pleadings

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UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

DEFENDANT REDSTONE GAMING CORP.'S ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFF'S COMPLAINT

Defendant Redstone Gaming Corp. ("Redstone" or "RGC"), a Delaware corporation publicly traded on the Nasdaq Stock Market (ticker symbol: RDST), with its principal place of business at 4100 Obsidian Tower Boulevard, Suite 2200, Las Vegas, Nevada 89109, by and through its attorneys of record, Calderwood & Harkness LLP, by Catherine Bloom, Responsible Partner, and local counsel Thorngate & Associates, PC, by Patricia Thorngate, hereby respectfully answers the Complaint filed by Plaintiff Luminos Interactive LLC ("Luminos" or "Plaintiff") on March 18, 2024 (Dkt. No. 1) (the "Complaint"), and asserts the affirmative defenses set forth below.

In responding to the Complaint, Redstone reserves all rights, defenses, and objections available to it, including but not limited to those under Rules 12(b) and 12(h) of the Federal Rules of Civil Procedure, and does not waive any such rights, defenses, or objections by filing this Answer. To the extent any allegation in the Complaint is not specifically and expressly admitted herein, it is denied. The headings and subheadings used in this Answer are for convenience of reference only and do not constitute admissions or concessions of any kind. Any reference to a paragraph of the Complaint is made solely for purposes of responding to that paragraph and does not constitute an admission that the paragraph states or implies any fact or legal conclusion.

ANSWER TO PLAINTIFF'S COMPLAINT

I. Response to Jurisdictional and Venue Allegations

Paragraph 1. Plaintiff alleges that it is a Texas limited liability company organized under the laws of the State of Texas, with its principal office located at 802 Brazos Creek Lane, Suite 5, Austin, Texas 78701.

Response: Redstone lacks sufficient knowledge or information to form a belief as to the truth of the allegations contained in Paragraph 1 of the Complaint and therefore denies the same. On information and belief, Redstone does not dispute that Luminos is organized as a limited liability company under the laws of the State of Texas, but Redstone is without sufficient knowledge to confirm the specific address or suite number alleged, or the extent of Luminos's operations at that location.

Paragraph 2. Plaintiff alleges that Defendant Redstone Gaming Corp. is a Delaware corporation with its principal place of business in Las Vegas, Nevada.

Response: Admitted. Redstone is a corporation duly organized and existing under the laws of the State of Delaware, with its principal place of business and corporate headquarters located at 4100 Obsidian Tower Boulevard, Suite 2200, Las Vegas, Nevada 89109. Redstone's registered agent in the State of Delaware is Capitol Registered Agents, Inc., located at 1209 Orange Street, Wilmington, Delaware 19801.

Paragraph 3. Plaintiff alleges that this Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331 (federal question jurisdiction) and 28 U.S.C. § 1338(a) (jurisdiction over claims arising under the Copyright Act, 17 U.S.C. § 101 et seq.).

Response: Admitted that this Court has subject matter jurisdiction under 28 U.S.C. § 1331 and 28 U.S.C. § 1338(a) to the extent Plaintiff's claims purport to arise under the Copyright Act, 17 U.S.C. § 101 et seq. Redstone does not concede, however, that Plaintiff has stated a valid claim under the Copyright Act, and all other defenses and objections are expressly preserved.

Paragraph 4. Plaintiff alleges that this Court has personal jurisdiction over Redstone based on its corporate headquarters and substantial business operations in the State of Nevada.

Response: Admitted. Redstone is subject to personal jurisdiction in this judicial district by virtue of its corporate headquarters and principal place of business in Las Vegas, Nevada, as well as its continuous and systematic business activities within the State of Nevada.

Paragraph 5. Plaintiff alleges that venue is proper in the District of Nevada pursuant to 28 U.S.C. § 1391(b).

Response: Admitted that venue is proper in this judicial district under 28 U.S.C. § 1391(b).

II. Response to Allegations Regarding Plaintiff Luminos Interactive LLC

Paragraph 6. Plaintiff alleges that Luminos Interactive LLC is an independent game development studio that developed and published the video game titled Shardfall Chronicles.

Response: Admitted that Luminos is an entity engaged in video game development. Redstone lacks sufficient knowledge or information to admit or deny the characterizations of Luminos's business operations, organizational structure, or the scope of its involvement in the development and publication of Shardfall Chronicles beyond what is publicly available, and therefore denies the same to the extent such characterizations go beyond publicly available information.

Paragraph 7. Plaintiff alleges that Shardfall Chronicles was released on the personal computer (PC) platform on March 22, 2021.

Response: Redstone admits, on information and belief, that the video game titled Shardfall Chronicles was released on or about March 22, 2021, for the PC platform. Redstone lacks sufficient independent knowledge to confirm the precise release date and therefore admits this allegation only on information and belief.

Paragraph 8. Plaintiff alleges that it registered the copyright for Shardfall Chronicles' audiovisual elements with the United States Copyright Office, under Registration No. VA 2-254-781, effective June 8, 2021.

Response: Redstone admits that, according to the public records of the United States Copyright Office, a registration bearing the number VA 2-254-781 was issued. Redstone lacks sufficient knowledge or information to admit or deny the scope, validity, or completeness of such registration and therefore denies the same to the extent Plaintiff characterizes the registration as covering all elements at issue in this litigation or as establishing ownership of all audiovisual elements in Shardfall Chronicles. Redstone further states that a certificate of registration constitutes only prima facie evidence of the validity of the copyright and the facts stated therein, and is subject to rebuttal.

Paragraph 9. Plaintiff alleges that Tobias Crane is the Founder and Managing Member of Luminos Interactive LLC and that Elara Whitfield is the Art Director and Co-Founder.

Response: Redstone lacks sufficient knowledge or information to form a belief as to the truth of the allegations contained in Paragraph 9 of the Complaint regarding the roles, titles, and organizational positions of the individuals identified, and therefore denies the same.

Paragraph 10. Plaintiff alleges that Shardfall Chronicles features a "distinctive" dark-fantasy aesthetic with "crystalline environmental textures," "stylized armored characters," and a "distinctive radial menu UI."

Response: Admitted that Shardfall Chronicles employs a fantasy aesthetic and contains visual elements including environmental textures, armored character models, and a radial menu user interface. Denied that the described elements are distinctive, original, or unique to Luminos or Shardfall Chronicles. The visual elements described in Paragraph 10 — including crystalline cave and environmental textures, medieval-style armored character designs, and radial menu user-interface paradigms — are common, generic, and widely used tropes and conventions in the fantasy role-playing game ("RPG") genre. Such elements constitute scènes à faire and are not entitled to copyright protection. Redstone affirmatively states that numerous other video games in the fantasy-RPG genre released prior to Shardfall Chronicles employ substantially identical or closely similar visual conventions.

III. Response to Allegations Regarding Defendant Redstone Gaming Corp.

Paragraph 11. Plaintiff alleges that Redstone Gaming Corp. is a publicly traded gaming and media/entertainment company.

Response: Admitted. Redstone Gaming Corp. is a publicly traded gaming and interactive entertainment company listed on the Nasdaq Stock Market under the ticker symbol RDST. For the fiscal year ended December 31, 2023, Redstone reported annual revenue of approximately $1.87 billion and employed approximately 4,200 full-time employees across its studios in Las Vegas, Nevada; Seattle, Washington; Montreal, Quebec, Canada; and London, United Kingdom. Redstone has been engaged in the development and publishing of video games since its founding in 2008.

Paragraph 12. Plaintiff alleges that Redstone developed and released the video game titled Ironclad Dominion on November 14, 2022.

Response: Admitted that Ironclad Dominion was released on November 14, 2022, on PC, PlayStation 5, and Xbox Series X|S platforms. Redstone further affirmatively states that the development of Ironclad Dominion commenced in the first quarter of 2020. The initial commit in Redstone's internal Git version-control repository designated "ironclad-main" is dated February 12, 2020, which is approximately thirteen (13) months before Shardfall Chronicles was released on March 22, 2021. The development timeline, as documented in Redstone's contemporaneous version-control records, internal project management systems, and design documentation, demonstrates that the creative development and iteration of Ironclad Dominion's visual assets — including the character designs, environmental textures, UI framework, and matte paintings at issue in this litigation — were well underway before Shardfall Chronicles entered the marketplace.

Paragraph 13. Plaintiff alleges that Ironclad Dominion generated approximately $312 million in revenue in its first twelve months following release.

Response: Admitted that Ironclad Dominion generated approximately $312 million in gross revenue during the twelve-month period from November 2022 through November 2023, as reported in Redstone's public financial filings with the Securities and Exchange Commission.

Paragraph 14. Plaintiff alleges that Jordan Kessler served as Vice President of Creative Development overseeing Ironclad Dominion's development and that Seo-Yeon Park served as Lead Character Artist on the project.

Response: Admitted. Jordan Kessler has served as Vice President of Creative Development at Redstone Gaming Corp. since 2018 and oversaw the creative development of Ironclad Dominion. Seo-Yeon Park served as Lead Character Artist on the Ironclad Dominion project from its inception through release.

IV. Response to Allegations of Copyright Infringement

Paragraph 15. Plaintiff alleges that it owns valid copyrights in Shardfall Chronicles and its constituent audiovisual elements.

Response: Redstone admits that Luminos holds Copyright Registration No. VA 2-254-781 as reflected in the public records of the United States Copyright Office. Redstone denies, however, that such registration extends to or protects the generic, unprotectable visual elements at issue in this litigation. Specifically, Redstone denies that copyright protection extends to crystalline cave textures, radial menu user interfaces, medieval plate-armor silhouettes, dark-fantasy environmental compositions, or other standard fantasy-RPG visual tropes that are not original to Luminos and are not entitled to copyright protection. To the extent Plaintiff claims copyright ownership over such elements, Redstone denies the validity and scope of any such claim.

Paragraph 16. Plaintiff alleges that Ironclad Dominion incorporates thirty-seven (37) specific visual assets that are "substantially similar" to corresponding assets in Shardfall Chronicles, comprising: (a) twelve (12) character armor designs; (b) nine (9) environmental crystal textures; (c) eight (8) UI icon sets; and (d) eight (8) background matte paintings.

Response: Denied. Redstone denies that any of the thirty-seven (37) visual assets identified in the Complaint are substantially similar to any protectable expression in Shardfall Chronicles. To the extent any superficial or general visual resemblances may exist between certain assets in the two games, such resemblances reflect common genre conventions, standard visual tropes, and scènes à faire elements inherent to the fantasy-RPG genre, and/or independently created original content. The elements identified by Plaintiff are, individually and collectively, generic expressions of unprotectable ideas that are commonplace throughout the video game industry. Redstone further denies that Plaintiff has identified any protectable creative expression that was copied or appropriated.

Paragraph 17. Plaintiff alleges that Redstone had access to Shardfall Chronicles and that the similarities between the two games are "too close to be coincidental."

Response: Denied. While Redstone acknowledges that Shardfall Chronicles was publicly available for purchase and download after its release on or about March 22, 2021, Redstone denies that its creative team accessed, referenced, or in any way used Shardfall Chronicles or its visual assets during the development of Ironclad Dominion. Redstone affirmatively states that the development of Ironclad Dominion's visual assets — including the character armor designs, environmental textures, UI frameworks, and matte paintings challenged in this action — predates the release of Shardfall Chronicles. The "ironclad-main" Git repository contains 14,208 commits spanning from February 12, 2020 through October 2022, documenting the continuous, iterative, and independent development of all visual assets in Ironclad Dominion. The character silhouettes, environmental textures, and UI frameworks at issue were designed, reviewed, and committed to Redstone's internal version-control system well before Shardfall Chronicles entered the marketplace. Redstone further denies Plaintiff's characterization that the alleged similarities are "too close to be coincidental," as such a characterization is conclusory and unsupported by any factual basis.

Paragraph 18. Plaintiff alleges that Redstone's alleged copying was willful and deliberate.

Response: Denied in its entirety. There was no copying — willful, deliberate, or otherwise. Redstone's creative team independently developed all visual assets in Ironclad Dominion without any reference to, reliance upon, or awareness of the specific visual elements of Shardfall Chronicles. The alleged similarities, to the extent they exist at all, result from the independent use of common genre elements, visual conventions, and standard artistic techniques employed throughout the fantasy-RPG video game industry.

Paragraph 19. Plaintiff alleges that the character armor designs in Ironclad Dominion replicate the silhouettes, color palettes, and detailing of Shardfall Chronicles' armored characters.

Response: Denied. Ironclad Dominion employs a mechanized-steampunk aesthetic that is fundamentally and visibly distinct from Shardfall Chronicles' dark-fantasy style. The character armor designs in Ironclad Dominion feature distinctive industrial and mechanical elements — including riveted steel plating, exposed gear mechanisms, steam venting components, and angular geometric forms — that are wholly absent from Shardfall Chronicles' character designs. Any perceived similarities in armor silhouettes reflect the functional and visual constraints inherent in depicting medieval-inspired plate armor — a genre convention and stock element that is unprotectable under the scènes à faire doctrine. The color palettes, material treatments, and ornamental detailing of the two games' respective armor designs are materially different, and Redstone denies that any protectable expression was replicated.

Paragraph 20. Plaintiff alleges that the environmental crystal textures in Ironclad Dominion were copied from Shardfall Chronicles.

Response: Denied. Crystalline cave environments, luminous mineral formations, and environmental crystal textures are ubiquitous and long-established visual elements in the fantasy-RPG genre and in fantasy media more broadly. These elements are not original to Luminos and are not protectable under copyright law. Numerous video games, films, and other creative works released prior to Shardfall Chronicles employ substantially similar crystalline environmental textures. Ironclad Dominion's crystal textures were independently created by Redstone's environmental art team using proprietary procedural generation tools and are aesthetically distinct from those in Shardfall Chronicles in their color grading, shader implementation, lighting behavior, and geometric structures.

Paragraph 21. Plaintiff alleges that the radial menu UI and icon sets in Ironclad Dominion infringe Luminos's copyrighted UI design.

Response: Denied. Radial menus — also commonly referred to as pie menus or contextual radial interfaces — are a standard, widely used, and well-established user-interface paradigm in video gaming and interactive software. Radial menu designs have been employed in numerous video games and software applications for decades and are functional UI elements that are not subject to copyright protection. Ironclad Dominion's contextual radial HUD was independently designed by Redstone's UI/UX team, led by Senior UI Designer Marcus Eidelmann, and is functionally and aesthetically distinct from Shardfall Chronicles' radial menu in its layout, iconography, animation behavior, contextual logic, and visual presentation. To the extent Plaintiff claims copyright protection over the general concept of a radial menu interface, such a claim impermissibly seeks to monopolize an unprotectable idea or functional element.

Paragraph 22. Plaintiff alleges that the background matte paintings in Ironclad Dominion are substantially similar to those in Shardfall Chronicles.

Response: Denied. The matte paintings in Ironclad Dominion depict mechanized-fantasy environments characterized by industrial architecture, towering smokestacks, gear-driven cityscapes, and atmospherically lit mechanical landscapes that are compositionally, thematically, and stylistically distinct from Shardfall Chronicles' dark-fantasy landscapes. The two games employ fundamentally different artistic visions, color palettes, compositional approaches, and environmental design philosophies. Any perceived similarities in the general compositional use of background matte paintings reflect standard techniques in digital environment art that are not protectable under copyright law.

V. Response to Allegations of Damages

Paragraph 23. Plaintiff alleges that it has been damaged in an amount of not less than $28.5 million, calculated as 9.13% of Ironclad Dominion's first-year revenue of $312 million, on the theory that the allegedly infringing assets accounted for approximately 9.13% of Ironclad Dominion's commercial appeal.

Response: Denied. Luminos's damages calculation is speculative, unsupported, methodologically flawed, and grossly inflated. The 9.13% apportionment figure cited by Plaintiff is without any factual, empirical, or economic basis, and Plaintiff has not identified any recognized methodology supporting this figure. Redstone affirmatively states that Shardfall Chronicles has generated estimated lifetime gross revenue of approximately $4.62 million, based on approximately 185,000 units sold at a manufacturer's suggested retail price of $24.99. Luminos's total annual revenue for the fiscal year ended December 31, 2023 was approximately $2.1 million. Plaintiff's claimed damages of $28.5 million thus far exceed the total commercial value of Plaintiff's own product by a factor of more than six and exceed Plaintiff's total annual revenue by a factor of more than thirteen. Plaintiff's damages theory is legally and economically untenable.

Paragraph 24. Plaintiff alleges that it is entitled to injunctive relief requiring the removal or modification of the allegedly infringing assets from Ironclad Dominion.

Response: Denied. No infringement has occurred, and therefore no injunctive relief is warranted. Moreover, Plaintiff cannot satisfy the requirements for injunctive relief under the four-factor test articulated in Northgate Group v. MercExchange, L.L.C., 547 U.S. 388 (2006). The issuance of an injunction requiring modification of Ironclad Dominion's assets would impose significant and irreparable harm on Redstone and its player community, and the balance of hardships and public interest weigh decisively against such relief.

Paragraph 25. Plaintiff alleges entitlement to statutory damages in the alternative, pursuant to 17 U.S.C. § 504(c).

Response: Denied. No statutory damages are warranted because no infringement has occurred. Moreover, Redstone reserves the right to challenge Plaintiff's eligibility for statutory damages based on the timing of Plaintiff's copyright registration relative to the alleged acts of infringement and to assert any applicable limitations on the availability of statutory damages.

Paragraph 26. Plaintiff alleges entitlement to an award of reasonable attorney's fees and costs pursuant to 17 U.S.C. § 505.

Response: Denied. No attorney's fees or costs should be awarded to Plaintiff. Redstone affirmatively reserves the right to seek its own award of reasonable attorney's fees and costs under 17 U.S.C. § 505 and any other applicable provision of law should this action be deemed objectively unreasonable, frivolous, or otherwise warrant such an award under the standards set forth in Kirtsaeng v. Crowne Albany Industries, Inc., 579 U.S. 197 (2016).

VI. General Denial

Except as specifically and expressly admitted herein, Redstone denies each and every allegation contained in the Complaint, including but not limited to any allegations, implications, characterizations, or conclusions of law set forth in the Complaint's introductory paragraphs, headings, prayer for relief, or any other section not separately addressed above.

AFFIRMATIVE DEFENSES

Without assuming the burden of proof on any issue for which it would not otherwise bear the burden, and without waiving any of the foregoing denials or defenses, Redstone asserts the following affirmative defenses. Redstone reserves the right to amend, supplement, or withdraw any of the following affirmative defenses as additional facts are developed through discovery and investigation.

First Affirmative Defense: Fair Use (17 U.S.C. § 107)

Redstone's use of any allegedly similar visual elements, to the extent such use occurred (which Redstone denies), constitutes fair use under 17 U.S.C. § 107. The fair use analysis supports Redstone on all four statutory factors:

Factor 1 — Purpose and Character of the Use. Ironclad Dominion is a highly transformative work that repurposes common fantasy motifs into a wholly original mechanized-steampunk context with independent narrative framing, original gameplay mechanics, and a distinct artistic vision. The purpose, character, and overall aesthetic of Ironclad Dominion are fundamentally different from those of Shardfall Chronicles. Where Shardfall Chronicles is a single-player indie action-RPG set in a dark-fantasy world, Ironclad Dominion is a AAA multiplayer tactical RPG set in a mechanized-fantasy world with entirely different narrative themes, gameplay systems, and visual design philosophy. The transformative nature of Ironclad Dominion weighs heavily in favor of fair use.

Factor 2 — Nature of the Copyrighted Work. While Shardfall Chronicles is a creative work, the specific visual elements at issue in this litigation are either functional in nature (e.g., radial menu UI elements designed to facilitate user interaction) or constitute genre-standard stock elements (e.g., crystalline cave textures, medieval plate-armor silhouettes, and dark-fantasy environmental compositions) that are common throughout the fantasy-RPG genre. The functional and generic nature of the challenged elements diminishes the weight of this factor in the fair use analysis.

Factor 3 — Amount and Substantiality of the Portion Used. Any similarities between the two works are de minimis in relation to the totality of each work. The thirty-seven (37) challenged assets identified by Plaintiff constitute a minuscule fraction of Ironclad Dominion's total asset library, which contains tens of thousands of individual visual assets. Preliminary analysis indicates minimal quantitative overlap between the works, and none of the challenged elements constitutes the "heart" of either work. The limited extent of any alleged similarity weighs in favor of fair use.

Factor 4 — Effect on the Market. Ironclad Dominion and Shardfall Chronicles serve non-overlapping market segments. Ironclad Dominion is a AAA multiplayer tactical RPG marketed to a broad consumer audience with a retail price of $69.99, while Shardfall Chronicles is a single-player indie action-RPG marketed to a niche audience with a retail price of $24.99. The two products differ in genre, gameplay mechanics, platform distribution, price point, and target demographic. There is no evidence that Ironclad Dominion has had any adverse effect on the market for Shardfall Chronicles or any derivative works thereof. This factor strongly favors a finding of fair use.

Second Affirmative Defense: Independent Creation

The visual assets in Ironclad Dominion that are challenged in the Complaint were independently created by Redstone's creative development team without reference to, reliance upon, or copying from Shardfall Chronicles or any of its visual elements.

The development of Ironclad Dominion commenced in the first quarter of 2020, well before Shardfall Chronicles was released to the public. The initial commit in Redstone's internal Git version-control repository designated "ironclad-main" is dated February 12, 2020, which is approximately thirteen (13) months before Shardfall Chronicles' release date of March 22, 2021. The "ironclad-main" repository contains a total of 14,208 commits spanning from February 12, 2020 through October 2022. These commits document the continuous, iterative, and independent creation and development of all visual assets in Ironclad Dominion, including the character armor designs, environmental textures, UI elements, and matte paintings that are the subject of Plaintiff's claims.

In addition to the version-control records, Redstone possesses extensive concept art archives, internal design review memoranda, creative briefs, art direction documents, and project management records that further confirm the independent creation of all challenged visual assets. These records establish an unbroken chain of independent creative development from initial concept through final implementation.

Independent creation is a complete defense to a claim of copyright infringement. Selle v. Gibb, 741 F.2d 896, 901 (7th Cir. 1984); Granite Music Corp. v. United Artists Corp., 532 F.2d 718, 720 (9th Cir. 1976). Because Redstone independently created all challenged assets, Plaintiff's infringement claims fail as a matter of law.

Third Affirmative Defense: Scènes à Faire / Merger Doctrine

The visual elements identified in the Complaint — including crystalline cave textures, radial menu user interfaces, medieval plate-armor silhouettes, and dark-fantasy environmental compositions — are standard tropes, stock elements, and conventional expressions that are inherent to and flow naturally from the fantasy-RPG genre.

Under the scènes à faire doctrine, expression that is standard, stock, or common to a particular genre, theme, or subject matter is not protectable by copyright because it flows naturally from the genre's conventions and audience expectations. Satava v. Lowry, 323 F.3d 805, 810 (9th Cir. 2003); Cavalier v. Random House, Inc., 297 F.3d 815, 823 (9th Cir. 2002). The visual elements at issue in this litigation are precisely such standard genre conventions. Crystalline environmental textures, medieval-style armor designs, radial menu interfaces, and sweeping fantasy landscape paintings have been employed in countless video games, tabletop RPGs, films, and other creative works in the fantasy genre for decades. These elements are not original to Luminos, and Luminos cannot claim copyright ownership over them.

To the extent the ideas underlying these visual elements can be expressed in only a limited number of ways, the merger doctrine independently bars copyright protection. When the idea and its expression are inseparable — or when there are so few ways to express the underlying idea that granting copyright protection would effectively grant a monopoly over the idea itself — the expression merges with the idea and becomes unprotectable. Morales v. Cosculluela, 718 F. App'x 565, 567 (9th Cir. 2017); Computer, Inc. v. Kestrel Partners LLC, 35 F.3d 1435, 1444 (9th Cir. 1994). The challenged visual elements fall squarely within this doctrine.

Fourth Affirmative Defense: Failure to State a Claim

The Complaint fails to state a claim upon which relief can be granted because Plaintiff has not adequately alleged that any protectable expression in Shardfall Chronicles was copied by Redstone. Plaintiff's allegations of copyright infringement rest on generalized and conclusory assertions of "substantial similarity" that fail to distinguish between protectable and unprotectable elements of Shardfall Chronicles. To state a claim for copyright infringement, a plaintiff must allege that the defendant copied protectable elements of the copyrighted work. Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340, 361 (1991). Plaintiff has failed to identify any protectable original expression — as distinguished from unprotectable ideas, genre conventions, functional elements, and scènes à faire — that was allegedly copied. The Complaint should therefore be dismissed for failure to state a claim.

Fifth Affirmative Defense: Lack of Substantial Similarity

The thirty-seven (37) challenged assets in Ironclad Dominion are not substantially similar to any protectable elements in Shardfall Chronicles under either the extrinsic test or the intrinsic test for substantial similarity as applied in the Ninth Circuit. Cavalier v. Random House, Inc., 297 F.3d 815, 822 (9th Cir. 2002); Swirsky v. Carey, 376 F.3d 841, 845 (9th Cir. 2004).

Under the extrinsic test, an objective comparison of the specific expressive elements of the two works reveals no protectable similarity. The alleged similarities identified by Plaintiff are attributable to shared genre conventions, standard visual tropes, and unprotectable ideas rather than to the copying of protectable creative expression. Under the intrinsic test, the overall look and feel of the two works are fundamentally different: Ironclad Dominion presents a mechanized-steampunk world that is visually, thematically, and tonally distinct from Shardfall Chronicles' dark-fantasy setting. No reasonable observer would conclude that the challenged elements of Ironclad Dominion are substantially similar to the protectable expression in Shardfall Chronicles.

Sixth Affirmative Defense: No Willful Infringement

Even if, arguendo, any infringement were found to have occurred (which Redstone expressly denies), such infringement was not willful. Redstone's creative team independently developed all challenged visual assets in Ironclad Dominion in good faith and without reference to, knowledge of, or reliance upon the specific visual elements of Shardfall Chronicles. At no time during the development of Ironclad Dominion did Redstone's creative team intentionally copy, reference, or seek to replicate any aspect of Shardfall Chronicles. Any finding of infringement, which Redstone does not concede, would not support an award of enhanced statutory damages or any other remedy predicated on willful conduct.

Seventh Affirmative Defense: Unclean Hands

Redstone reserves the right to assert the affirmative defense of unclean hands to the extent that discovery reveals that Plaintiff has engaged in inequitable conduct in connection with the procurement of its copyright registration, the prosecution of this litigation, representations made to the United States Copyright Office, or otherwise. This defense is asserted on information and belief and is subject to supplementation as discovery proceeds.

Eighth Affirmative Defense: Failure to Mitigate Damages

To the extent Plaintiff suffered any damages as a result of the conduct alleged in the Complaint (which Redstone denies), Plaintiff failed to take reasonable steps to mitigate such damages. Plaintiff's failure to mitigate bars or reduces any recovery to which Plaintiff might otherwise be entitled. Redstone reserves the right to present evidence of Plaintiff's failure to mitigate damages as discovery develops.

Ninth Affirmative Defense: Copyright Misuse

Redstone reserves the right to assert the affirmative defense of copyright misuse to the extent that Plaintiff is attempting to leverage its copyright registration to control, monopolize, or restrain the use of unprotectable elements, unprotectable ideas, or standard industry conventions in the fantasy-RPG genre, thereby extending its copyright beyond its legitimate scope. The assertion of copyright over generic visual elements that are commonplace in the fantasy-RPG genre constitutes an impermissible attempt to stifle creative competition and innovation in the video game industry. Such conduct, if proven, would render Plaintiff's copyright unenforceable as applied to this litigation. Practice Mgmt. Info. Corp. v. Am. Med. Ass'n, 121 F.3d 516, 520 (9th Cir. 1997).

Tenth Affirmative Defense: Reservation of Additional Defenses

Redstone reserves the right to amend this Answer and to assert additional affirmative defenses as discovery proceeds, as additional facts become known, and as the issues in this case are further developed. Redstone does not intend, by the assertion of the foregoing affirmative defenses, to assume any burden of proof that would not otherwise be assigned to it under applicable law.

PRAYER FOR RELIEF

WHEREFORE, Defendant Redstone Gaming Corp. respectfully requests that this Court enter judgment in its favor and against Plaintiff Luminos Interactive LLC, and grant the following relief:

1. That the Complaint be dismissed in its entirety, with prejudice, and that Plaintiff take nothing by its claims;

2. That judgment be entered in favor of Redstone and against Luminos on each and every claim and cause of action asserted in the Complaint;

3. That Redstone be awarded its reasonable attorney's fees and costs incurred in the defense of this action, pursuant to 17 U.S.C. § 505 and any other applicable provision of law;

4. That Redstone be awarded such other and further relief as this Court deems just, proper, and equitable under the circumstances.

JURY DEMAND

Pursuant to Rule 38(b) of the Federal Rules of Civil Procedure, Defendant Redstone Gaming Corp. hereby demands a trial by jury on all issues and claims in this action so triable as of right.

Dated: April 22, 2024

Respectfully submitted,

CALDERWOOD & HARKNESS LLP

By: ________

Catherine Bloom (CA Bar No. 247831) Alan Ngo (CA Bar No. 298456) Omar Siddiqui (CA Bar No. 312774) Christy Bauer (CA Bar No. 305219) 600 South Grand Avenue, Suite 4400 Los Angeles, California 90071 Telephone: (213) 555-7400 Facsimile: (213) 555-7401

Email: cbloom@calderwoodharkness.com

Email: ango@calderwoodharkness.com

Email: osiddiqui@calderwoodharkness.com

Email: cbauer@calderwoodharkness.com

Attorneys for Defendant Redstone Gaming Corp.

THORNGATE & ASSOCIATES, PC

By: ________

Patricia Thorngate (NV Bar No. 10482) 300 South Fourth Street, Suite 1100 Las Vegas, Nevada 89101 Telephone: (702) 555-3200 Facsimile: (702) 555-3201

Email: pthorngate@thorngatelaw.com

Local Counsel for Defendant Redstone Gaming Corp.

CERTIFICATE OF SERVICE

I hereby certify that on April 22, 2024, the foregoing Defendant Redstone Gaming Corp.'s Answer and Affirmative Defenses to Plaintiff's Complaint was filed with the Clerk of the Court for the United States District Court, District of Nevada, using the CM/ECF electronic filing system. Pursuant to the Court's electronic filing procedures, all parties registered to receive electronic notifications through CM/ECF were served with a copy of this filing via electronic transmission, including the following counsel of record for Plaintiff:

Daniel Hargrove, Esq. Megan Forsyth, Esq. HARGROVE, TANAKA & WHITMORE LLP 1400 Congress Avenue, Suite 900 Austin, Texas 78701 Telephone: (512) 555-6100

Email: dhargrove@htwlaw.com

Email: mforsyth@htwlaw.com

Counsel for Plaintiff Luminos Interactive LLC

By: ________

Catherine Bloom CALDERWOOD & HARKNESS LLP

LUMINOS INTERACTIVE LLC, a Texas limited liability company,

Plaintiff,

Case No.: 2:24-cv-00587-RWL

Hon. Rebecca W. Langford

REDSTONE GAMING CORP., a Delaware corporation,

Defendant.

UNITED STATES DISTRICT COURT DISTRICT OF NEVADA
DEFENDANT REDSTONE GAMING CORP.'S ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFF'S COMPLAINT
Defendant Redstone Gaming Corp. ("Redstone" or "RGC"), a Delaware corporation publicly traded on the Nasdaq Stock Market (ticker symbol: RDST), with its principal place of business at 4100 Obsidian Tower Boulevard, Suite 2200, Las Vegas, Nevada 89109, by and through its attorneys of record, Calderwood & Harkness LLP, by Catherine Bloom, Responsible Partner, and local counsel Thorngate & Associates, PC, by Patricia Thorngate, hereby respectfully answers the Complaint filed by Plaintiff Luminos Interactive LLC ("Luminos" or "Plaintiff") on March 18, 2024 (Dkt. No. 1) (the "Complaint"), and asserts the affirmative defenses set forth below.
In responding to the Complaint, Redstone reserves all rights, defenses, and objections available to it, including but not limited to those under Rules 12(b) and 12(h) of the Federal Rules of Civil Procedure, and does not waive any such rights, defenses, or objections by filing this Answer. To the extent any allegation in the Complaint is not specifically and expressly admitted herein, it is denied. The headings and subheadings used in this Answer are for convenience of reference only and do not constitute admissions or concessions of any kind. Any reference to a paragraph of the Complaint is made solely for purposes of responding to that paragraph and does not constitute an admission that the paragraph states or implies any fact or legal conclusion.
ANSWER TO PLAINTIFF'S COMPLAINT
I. Response to Jurisdictional and Venue Allegations
Paragraph 1. Plaintiff alleges that it is a Texas limited liability company organized under the laws of the State of Texas, with its principal office located at 802 Brazos Creek Lane, Suite 5, Austin, Texas 78701.
Response: Redstone lacks sufficient knowledge or information to form a belief as to the truth of the allegations contained in Paragraph 1 of the Complaint and therefore denies the same. On information and belief, Redstone does not dispute that Luminos is organized as a limited liability company under the laws of the State of Texas, but Redstone is without sufficient knowledge to confirm the specific address or suite number alleged, or the extent of Luminos's operations at that location.
Paragraph 2. Plaintiff alleges that Defendant Redstone Gaming Corp. is a Delaware corporation with its principal place of business in Las Vegas, Nevada.
Response: Admitted. Redstone is a corporation duly organized and existing under the laws of the State of Delaware, with its principal place of business and corporate headquarters located at 4100 Obsidian Tower Boulevard, Suite 2200, Las Vegas, Nevada 89109. Redstone's registered agent in the State of Delaware is Capitol Registered Agents, Inc., located at 1209 Orange Street, Wilmington, Delaware 19801.
Paragraph 3. Plaintiff alleges that this Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331 (federal question jurisdiction) and 28 U.S.C. § 1338(a) (jurisdiction over claims arising under the Copyright Act, 17 U.S.C. § 101 et seq.).
Response: Admitted that this Court has subject matter jurisdiction under 28 U.S.C. § 1331 and 28 U.S.C. § 1338(a) to the extent Plaintiff's claims purport to arise under the Copyright Act, 17 U.S.C. § 101 et seq. Redstone does not concede, however, that Plaintiff has stated a valid claim under the Copyright Act, and all other defenses and objections are expressly preserved.
Paragraph 4. Plaintiff alleges that this Court has personal jurisdiction over Redstone based on its corporate headquarters and substantial business operations in the State of Nevada.
Response: Admitted. Redstone is subject to personal jurisdiction in this judicial district by virtue of its corporate headquarters and principal place of business in Las Vegas, Nevada, as well as its continuous and systematic business activities within the State of Nevada.
Paragraph 5. Plaintiff alleges that venue is proper in the District of Nevada pursuant to 28 U.S.C. § 1391(b).
Response: Admitted that venue is proper in this judicial district under 28 U.S.C. § 1391(b).
II. Response to Allegations Regarding Plaintiff Luminos Interactive LLC
Paragraph 6. Plaintiff alleges that Luminos Interactive LLC is an independent game development studio that developed and published the video game titled Shardfall Chronicles.
Response: Admitted that Luminos is an entity engaged in video game development. Redstone lacks sufficient knowledge or information to admit or deny the characterizations of Luminos's business operations, organizational structure, or the scope of its involvement in the development and publication of Shardfall Chronicles beyond what is publicly available, and therefore denies the same to the extent such characterizations go beyond publicly available information.
Paragraph 7. Plaintiff alleges that Shardfall Chronicles was released on the personal computer (PC) platform on March 22, 2021.
Response: Redstone admits, on information and belief, that the video game titled Shardfall Chronicles was released on or about March 22, 2021, for the PC platform. Redstone lacks sufficient independent knowledge to confirm the precise release date and therefore admits this allegation only on information and belief.
Paragraph 8. Plaintiff alleges that it registered the copyright for Shardfall Chronicles' audiovisual elements with the United States Copyright Office, under Registration No. VA 2-254-781, effective June 8, 2021.
Response: Redstone admits that, according to the public records of the United States Copyright Office, a registration bearing the number VA 2-254-781 was issued. Redstone lacks sufficient knowledge or information to admit or deny the scope, validity, or completeness of such registration and therefore denies the same to the extent Plaintiff characterizes the registration as covering all elements at issue in this litigation or as establishing ownership of all audiovisual elements in Shardfall Chronicles. Redstone further states that a certificate of registration constitutes only prima facie evidence of the validity of the copyright and the facts stated therein, and is subject to rebuttal.
Paragraph 9. Plaintiff alleges that Tobias Crane is the Founder and Managing Member of Luminos Interactive LLC and that Elara Whitfield is the Art Director and Co-Founder.
Response: Redstone lacks sufficient knowledge or information to form a belief as to the truth of the allegations contained in Paragraph 9 of the Complaint regarding the roles, titles, and organizational positions of the individuals identified, and therefore denies the same.
Paragraph 10. Plaintiff alleges that Shardfall Chronicles features a "distinctive" dark-fantasy aesthetic with "crystalline environmental textures," "stylized armored characters," and a "distinctive radial menu UI."
Response: Admitted that Shardfall Chronicles employs a fantasy aesthetic and contains visual elements including environmental textures, armored character models, and a radial menu user interface. Denied that the described elements are distinctive, original, or unique to Luminos or Shardfall Chronicles. The visual elements described in Paragraph 10 — including crystalline cave and environmental textures, medieval-style armored character designs, and radial menu user-interface paradigms — are common, generic, and widely used tropes and conventions in the fantasy role-playing game ("RPG") genre. Such elements constitute scènes à faire and are not entitled to copyright protection. Redstone affirmatively states that numerous other video games in the fantasy-RPG genre released prior to Shardfall Chronicles employ substantially identical or closely similar visual conventions.
III. Response to Allegations Regarding Defendant Redstone Gaming Corp.
Paragraph 11. Plaintiff alleges that Redstone Gaming Corp. is a publicly traded gaming and media/entertainment company.
Response: Admitted. Redstone Gaming Corp. is a publicly traded gaming and interactive entertainment company listed on the Nasdaq Stock Market under the ticker symbol RDST. For the fiscal year ended December 31, 2023, Redstone reported annual revenue of approximately $1.87 billion and employed approximately 4,200 full-time employees across its studios in Las Vegas, Nevada; Seattle, Washington; Montreal, Quebec, Canada; and London, United Kingdom. Redstone has been engaged in the development and publishing of video games since its founding in 2008.
Paragraph 12. Plaintiff alleges that Redstone developed and released the video game titled Ironclad Dominion on November 14, 2022.
Response: Admitted that Ironclad Dominion was released on November 14, 2022, on PC, PlayStation 5, and Xbox Series X|S platforms. Redstone further affirmatively states that the development of Ironclad Dominion commenced in the first quarter of 2020. The initial commit in Redstone's internal Git version-control repository designated "ironclad-main" is dated February 12, 2020, which is approximately thirteen (13) months before Shardfall Chronicles was released on March 22, 2021. The development timeline, as documented in Redstone's contemporaneous version-control records, internal project management systems, and design documentation, demonstrates that the creative development and iteration of Ironclad Dominion's visual assets — including the character designs, environmental textures, UI framework, and matte paintings at issue in this litigation — were well underway before Shardfall Chronicles entered the marketplace.
Paragraph 13. Plaintiff alleges that Ironclad Dominion generated approximately $312 million in revenue in its first twelve months following release.
Response: Admitted that Ironclad Dominion generated approximately $312 million in gross revenue during the twelve-month period from November 2022 through November 2023, as reported in Redstone's public financial filings with the Securities and Exchange Commission.
Paragraph 14. Plaintiff alleges that Jordan Kessler served as Vice President of Creative Development overseeing Ironclad Dominion's development and that Seo-Yeon Park served as Lead Character Artist on the project.
Response: Admitted. Jordan Kessler has served as Vice President of Creative Development at Redstone Gaming Corp. since 2018 and oversaw the creative development of Ironclad Dominion. Seo-Yeon Park served as Lead Character Artist on the Ironclad Dominion project from its inception through release.
IV. Response to Allegations of Copyright Infringement
Paragraph 15. Plaintiff alleges that it owns valid copyrights in Shardfall Chronicles and its constituent audiovisual elements.
Response: Redstone admits that Luminos holds Copyright Registration No. VA 2-254-781 as reflected in the public records of the United States Copyright Office. Redstone denies, however, that such registration extends to or protects the generic, unprotectable visual elements at issue in this litigation. Specifically, Redstone denies that copyright protection extends to crystalline cave textures, radial menu user interfaces, medieval plate-armor silhouettes, dark-fantasy environmental compositions, or other standard fantasy-RPG visual tropes that are not original to Luminos and are not entitled to copyright protection. To the extent Plaintiff claims copyright ownership over such elements, Redstone denies the validity and scope of any such claim.
Paragraph 16. Plaintiff alleges that Ironclad Dominion incorporates thirty-seven (37) specific visual assets that are "substantially similar" to corresponding assets in Shardfall Chronicles, comprising: (a) twelve (12) character armor designs; (b) nine (9) environmental crystal textures; (c) eight (8) UI icon sets; and (d) eight (8) background matte paintings.
Response: Denied. Redstone denies that any of the thirty-seven (37) visual assets identified in the Complaint are substantially similar to any protectable expression in Shardfall Chronicles. To the extent any superficial or general visual resemblances may exist between certain assets in the two games, such resemblances reflect common genre conventions, standard visual tropes, and scènes à faire elements inherent to the fantasy-RPG genre, and/or independently created original content. The elements identified by Plaintiff are, individually and collectively, generic expressions of unprotectable ideas that are commonplace throughout the video game industry. Redstone further denies that Plaintiff has identified any protectable creative expression that was copied or appropriated.
Paragraph 17. Plaintiff alleges that Redstone had access to Shardfall Chronicles and that the similarities between the two games are "too close to be coincidental."
Response: Denied. While Redstone acknowledges that Shardfall Chronicles was publicly available for purchase and download after its release on or about March 22, 2021, Redstone denies that its creative team accessed, referenced, or in any way used Shardfall Chronicles or its visual assets during the development of Ironclad Dominion. Redstone affirmatively states that the development of Ironclad Dominion's visual assets — including the character armor designs, environmental textures, UI frameworks, and matte paintings challenged in this action — predates the release of Shardfall Chronicles. The "ironclad-main" Git repository contains 14,208 commits spanning from February 12, 2020 through October 2022, documenting the continuous, iterative, and independent development of all visual assets in Ironclad Dominion. The character silhouettes, environmental textures, and UI frameworks at issue were designed, reviewed, and committed to Redstone's internal version-control system well before Shardfall Chronicles entered the marketplace. Redstone further denies Plaintiff's characterization that the alleged similarities are "too close to be coincidental," as such a characterization is conclusory and unsupported by any factual basis.
Paragraph 18. Plaintiff alleges that Redstone's alleged copying was willful and deliberate.
Response: Denied in its entirety. There was no copying — willful, deliberate, or otherwise. Redstone's creative team independently developed all visual assets in Ironclad Dominion without any reference to, reliance upon, or awareness of the specific visual elements of Shardfall Chronicles. The alleged similarities, to the extent they exist at all, result from the independent use of common genre elements, visual conventions, and standard artistic techniques employed throughout the fantasy-RPG video game industry.
Paragraph 19. Plaintiff alleges that the character armor designs in Ironclad Dominion replicate the silhouettes, color palettes, and detailing of Shardfall Chronicles' armored characters.
Response: Denied. Ironclad Dominion employs a mechanized-steampunk aesthetic that is fundamentally and visibly distinct from Shardfall Chronicles' dark-fantasy style. The character armor designs in Ironclad Dominion feature distinctive industrial and mechanical elements — including riveted steel plating, exposed gear mechanisms, steam venting components, and angular geometric forms — that are wholly absent from Shardfall Chronicles' character designs. Any perceived similarities in armor silhouettes reflect the functional and visual constraints inherent in depicting medieval-inspired plate armor — a genre convention and stock element that is unprotectable under the scènes à faire doctrine. The color palettes, material treatments, and ornamental detailing of the two games' respective armor designs are materially different, and Redstone denies that any protectable expression was replicated.
Paragraph 20. Plaintiff alleges that the environmental crystal textures in Ironclad Dominion were copied from Shardfall Chronicles.
Response: Denied. Crystalline cave environments, luminous mineral formations, and environmental crystal textures are ubiquitous and long-established visual elements in the fantasy-RPG genre and in fantasy media more broadly. These elements are not original to Luminos and are not protectable under copyright law. Numerous video games, films, and other creative works released prior to Shardfall Chronicles employ substantially similar crystalline environmental textures. Ironclad Dominion's crystal textures were independently created by Redstone's environmental art team using proprietary procedural generation tools and are aesthetically distinct from those in Shardfall Chronicles in their color grading, shader implementation, lighting behavior, and geometric structures.
Paragraph 21. Plaintiff alleges that the radial menu UI and icon sets in Ironclad Dominion infringe Luminos's copyrighted UI design.
Response: Denied. Radial menus — also commonly referred to as pie menus or contextual radial interfaces — are a standard, widely used, and well-established user-interface paradigm in video gaming and interactive software. Radial menu designs have been employed in numerous video games and software applications for decades and are functional UI elements that are not subject to copyright protection. Ironclad Dominion's contextual radial HUD was independently designed by Redstone's UI/UX team, led by Senior UI Designer Marcus Eidelmann, and is functionally and aesthetically distinct from Shardfall Chronicles' radial menu in its layout, iconography, animation behavior, contextual logic, and visual presentation. To the extent Plaintiff claims copyright protection over the general concept of a radial menu interface, such a claim impermissibly seeks to monopolize an unprotectable idea or functional element.
Paragraph 22. Plaintiff alleges that the background matte paintings in Ironclad Dominion are substantially similar to those in Shardfall Chronicles.
Response: Denied. The matte paintings in Ironclad Dominion depict mechanized-fantasy environments characterized by industrial architecture, towering smokestacks, gear-driven cityscapes, and atmospherically lit mechanical landscapes that are compositionally, thematically, and stylistically distinct from Shardfall Chronicles' dark-fantasy landscapes. The two games employ fundamentally different artistic visions, color palettes, compositional approaches, and environmental design philosophies. Any perceived similarities in the general compositional use of background matte paintings reflect standard techniques in digital environment art that are not protectable under copyright law.
V. Response to Allegations of Damages
Paragraph 23. Plaintiff alleges that it has been damaged in an amount of not less than $28.5 million, calculated as 9.13% of Ironclad Dominion's first-year revenue of $312 million, on the theory that the allegedly infringing assets accounted for approximately 9.13% of Ironclad Dominion's commercial appeal.
Response: Denied. Luminos's damages calculation is speculative, unsupported, methodologically flawed, and grossly inflated. The 9.13% apportionment figure cited by Plaintiff is without any factual, empirical, or economic basis, and Plaintiff has not identified any recognized methodology supporting this figure. Redstone affirmatively states that Shardfall Chronicles has generated estimated lifetime gross revenue of approximately $4.62 million, based on approximately 185,000 units sold at a manufacturer's suggested retail price of $24.99. Luminos's total annual revenue for the fiscal year ended December 31, 2023 was approximately $2.1 million. Plaintiff's claimed damages of $28.5 million thus far exceed the total commercial value of Plaintiff's own product by a factor of more than six and exceed Plaintiff's total annual revenue by a factor of more than thirteen. Plaintiff's damages theory is legally and economically untenable.
Paragraph 24. Plaintiff alleges that it is entitled to injunctive relief requiring the removal or modification of the allegedly infringing assets from Ironclad Dominion.
Response: Denied. No infringement has occurred, and therefore no injunctive relief is warranted. Moreover, Plaintiff cannot satisfy the requirements for injunctive relief under the four-factor test articulated in Northgate Group v. MercExchange, L.L.C., 547 U.S. 388 (2006). The issuance of an injunction requiring modification of Ironclad Dominion's assets would impose significant and irreparable harm on Redstone and its player community, and the balance of hardships and public interest weigh decisively against such relief.
Paragraph 25. Plaintiff alleges entitlement to statutory damages in the alternative, pursuant to 17 U.S.C. § 504(c).
Response: Denied. No statutory damages are warranted because no infringement has occurred. Moreover, Redstone reserves the right to challenge Plaintiff's eligibility for statutory damages based on the timing of Plaintiff's copyright registration relative to the alleged acts of infringement and to assert any applicable limitations on the availability of statutory damages.
Paragraph 26. Plaintiff alleges entitlement to an award of reasonable attorney's fees and costs pursuant to 17 U.S.C. § 505.
Response: Denied. No attorney's fees or costs should be awarded to Plaintiff. Redstone affirmatively reserves the right to seek its own award of reasonable attorney's fees and costs under 17 U.S.C. § 505 and any other applicable provision of law should this action be deemed objectively unreasonable, frivolous, or otherwise warrant such an award under the standards set forth in Kirtsaeng v. Crowne Albany Industries, Inc., 579 U.S. 197 (2016).
VI. General Denial
Except as specifically and expressly admitted herein, Redstone denies each and every allegation contained in the Complaint, including but not limited to any allegations, implications, characterizations, or conclusions of law set forth in the Complaint's introductory paragraphs, headings, prayer for relief, or any other section not separately addressed above.
AFFIRMATIVE DEFENSES
Without assuming the burden of proof on any issue for which it would not otherwise bear the burden, and without waiving any of the foregoing denials or defenses, Redstone asserts the following affirmative defenses. Redstone reserves the right to amend, supplement, or withdraw any of the following affirmative defenses as additional facts are developed through discovery and investigation.
First Affirmative Defense: Fair Use (17 U.S.C. § 107)
Redstone's use of any allegedly similar visual elements, to the extent such use occurred (which Redstone denies), constitutes fair use under 17 U.S.C. § 107. The fair use analysis supports Redstone on all four statutory factors:
Factor 1 — Purpose and Character of the Use. Ironclad Dominion is a highly transformative work that repurposes common fantasy motifs into a wholly original mechanized-steampunk context with independent narrative framing, original gameplay mechanics, and a distinct artistic vision. The purpose, character, and overall aesthetic of Ironclad Dominion are fundamentally different from those of Shardfall Chronicles. Where Shardfall Chronicles is a single-player indie action-RPG set in a dark-fantasy world, Ironclad Dominion is a AAA multiplayer tactical RPG set in a mechanized-fantasy world with entirely different narrative themes, gameplay systems, and visual design philosophy. The transformative nature of Ironclad Dominion weighs heavily in favor of fair use.
Factor 2 — Nature of the Copyrighted Work. While Shardfall Chronicles is a creative work, the specific visual elements at issue in this litigation are either functional in nature (e.g., radial menu UI elements designed to facilitate user interaction) or constitute genre-standard stock elements (e.g., crystalline cave textures, medieval plate-armor silhouettes, and dark-fantasy environmental compositions) that are common throughout the fantasy-RPG genre. The functional and generic nature of the challenged elements diminishes the weight of this factor in the fair use analysis.
Factor 3 — Amount and Substantiality of the Portion Used. Any similarities between the two works are de minimis in relation to the totality of each work. The thirty-seven (37) challenged assets identified by Plaintiff constitute a minuscule fraction of Ironclad Dominion's total asset library, which contains tens of thousands of individual visual assets. Preliminary analysis indicates minimal quantitative overlap between the works, and none of the challenged elements constitutes the "heart" of either work. The limited extent of any alleged similarity weighs in favor of fair use.
Factor 4 — Effect on the Market. Ironclad Dominion and Shardfall Chronicles serve non-overlapping market segments. Ironclad Dominion is a AAA multiplayer tactical RPG marketed to a broad consumer audience with a retail price of $69.99, while Shardfall Chronicles is a single-player indie action-RPG marketed to a niche audience with a retail price of $24.99. The two products differ in genre, gameplay mechanics, platform distribution, price point, and target demographic. There is no evidence that Ironclad Dominion has had any adverse effect on the market for Shardfall Chronicles or any derivative works thereof. This factor strongly favors a finding of fair use.
Second Affirmative Defense: Independent Creation
The visual assets in Ironclad Dominion that are challenged in the Complaint were independently created by Redstone's creative development team without reference to, reliance upon, or copying from Shardfall Chronicles or any of its visual elements.
The development of Ironclad Dominion commenced in the first quarter of 2020, well before Shardfall Chronicles was released to the public. The initial commit in Redstone's internal Git version-control repository designated "ironclad-main" is dated February 12, 2020, which is approximately thirteen (13) months before Shardfall Chronicles' release date of March 22, 2021. The "ironclad-main" repository contains a total of 14,208 commits spanning from February 12, 2020 through October 2022. These commits document the continuous, iterative, and independent creation and development of all visual assets in Ironclad Dominion, including the character armor designs, environmental textures, UI elements, and matte paintings that are the subject of Plaintiff's claims.
In addition to the version-control records, Redstone possesses extensive concept art archives, internal design review memoranda, creative briefs, art direction documents, and project management records that further confirm the independent creation of all challenged visual assets. These records establish an unbroken chain of independent creative development from initial concept through final implementation.
Independent creation is a complete defense to a claim of copyright infringement. Selle v. Gibb, 741 F.2d 896, 901 (7th Cir. 1984); Granite Music Corp. v. United Artists Corp., 532 F.2d 718, 720 (9th Cir. 1976). Because Redstone independently created all challenged assets, Plaintiff's infringement claims fail as a matter of law.
Third Affirmative Defense: Scènes à Faire / Merger Doctrine
The visual elements identified in the Complaint — including crystalline cave textures, radial menu user interfaces, medieval plate-armor silhouettes, and dark-fantasy environmental compositions — are standard tropes, stock elements, and conventional expressions that are inherent to and flow naturally from the fantasy-RPG genre.
Under the scènes à faire doctrine, expression that is standard, stock, or common to a particular genre, theme, or subject matter is not protectable by copyright because it flows naturally from the genre's conventions and audience expectations. Satava v. Lowry, 323 F.3d 805, 810 (9th Cir. 2003); Cavalier v. Random House, Inc., 297 F.3d 815, 823 (9th Cir. 2002). The visual elements at issue in this litigation are precisely such standard genre conventions. Crystalline environmental textures, medieval-style armor designs, radial menu interfaces, and sweeping fantasy landscape paintings have been employed in countless video games, tabletop RPGs, films, and other creative works in the fantasy genre for decades. These elements are not original to Luminos, and Luminos cannot claim copyright ownership over them.
To the extent the ideas underlying these visual elements can be expressed in only a limited number of ways, the merger doctrine independently bars copyright protection. When the idea and its expression are inseparable — or when there are so few ways to express the underlying idea that granting copyright protection would effectively grant a monopoly over the idea itself — the expression merges with the idea and becomes unprotectable. Morales v. Cosculluela, 718 F. App'x 565, 567 (9th Cir. 2017); Computer, Inc. v. Kestrel Partners LLC, 35 F.3d 1435, 1444 (9th Cir. 1994). The challenged visual elements fall squarely within this doctrine.
Fourth Affirmative Defense: Failure to State a Claim
The Complaint fails to state a claim upon which relief can be granted because Plaintiff has not adequately alleged that any protectable expression in Shardfall Chronicles was copied by Redstone. Plaintiff's allegations of copyright infringement rest on generalized and conclusory assertions of "substantial similarity" that fail to distinguish between protectable and unprotectable elements of Shardfall Chronicles. To state a claim for copyright infringement, a plaintiff must allege that the defendant copied protectable elements of the copyrighted work. Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340, 361 (1991). Plaintiff has failed to identify any protectable original expression — as distinguished from unprotectable ideas, genre conventions, functional elements, and scènes à faire — that was allegedly copied. The Complaint should therefore be dismissed for failure to state a claim.
Fifth Affirmative Defense: Lack of Substantial Similarity
The thirty-seven (37) challenged assets in Ironclad Dominion are not substantially similar to any protectable elements in Shardfall Chronicles under either the extrinsic test or the intrinsic test for substantial similarity as applied in the Ninth Circuit. Cavalier v. Random House, Inc., 297 F.3d 815, 822 (9th Cir. 2002); Swirsky v. Carey, 376 F.3d 841, 845 (9th Cir. 2004).
Under the extrinsic test, an objective comparison of the specific expressive elements of the two works reveals no protectable similarity. The alleged similarities identified by Plaintiff are attributable to shared genre conventions, standard visual tropes, and unprotectable ideas rather than to the copying of protectable creative expression. Under the intrinsic test, the overall look and feel of the two works are fundamentally different: Ironclad Dominion presents a mechanized-steampunk world that is visually, thematically, and tonally distinct from Shardfall Chronicles' dark-fantasy setting. No reasonable observer would conclude that the challenged elements of Ironclad Dominion are substantially similar to the protectable expression in Shardfall Chronicles.
Sixth Affirmative Defense: No Willful Infringement
Even if, arguendo, any infringement were found to have occurred (which Redstone expressly denies), such infringement was not willful. Redstone's creative team independently developed all challenged visual assets in Ironclad Dominion in good faith and without reference to, knowledge of, or reliance upon the specific visual elements of Shardfall Chronicles. At no time during the development of Ironclad Dominion did Redstone's creative team intentionally copy, reference, or seek to replicate any aspect of Shardfall Chronicles. Any finding of infringement, which Redstone does not concede, would not support an award of enhanced statutory damages or any other remedy predicated on willful conduct.
Seventh Affirmative Defense: Unclean Hands
Redstone reserves the right to assert the affirmative defense of unclean hands to the extent that discovery reveals that Plaintiff has engaged in inequitable conduct in connection with the procurement of its copyright registration, the prosecution of this litigation, representations made to the United States Copyright Office, or otherwise. This defense is asserted on information and belief and is subject to supplementation as discovery proceeds.
Eighth Affirmative Defense: Failure to Mitigate Damages
To the extent Plaintiff suffered any damages as a result of the conduct alleged in the Complaint (which Redstone denies), Plaintiff failed to take reasonable steps to mitigate such damages. Plaintiff's failure to mitigate bars or reduces any recovery to which Plaintiff might otherwise be entitled. Redstone reserves the right to present evidence of Plaintiff's failure to mitigate damages as discovery develops.
Ninth Affirmative Defense: Copyright Misuse
Redstone reserves the right to assert the affirmative defense of copyright misuse to the extent that Plaintiff is attempting to leverage its copyright registration to control, monopolize, or restrain the use of unprotectable elements, unprotectable ideas, or standard industry conventions in the fantasy-RPG genre, thereby extending its copyright beyond its legitimate scope. The assertion of copyright over generic visual elements that are commonplace in the fantasy-RPG genre constitutes an impermissible attempt to stifle creative competition and innovation in the video game industry. Such conduct, if proven, would render Plaintiff's copyright unenforceable as applied to this litigation. Practice Mgmt. Info. Corp. v. Am. Med. Ass'n, 121 F.3d 516, 520 (9th Cir. 1997).
Tenth Affirmative Defense: Reservation of Additional Defenses
Redstone reserves the right to amend this Answer and to assert additional affirmative defenses as discovery proceeds, as additional facts become known, and as the issues in this case are further developed. Redstone does not intend, by the assertion of the foregoing affirmative defenses, to assume any burden of proof that would not otherwise be assigned to it under applicable law.
PRAYER FOR RELIEF
WHEREFORE, Defendant Redstone Gaming Corp. respectfully requests that this Court enter judgment in its favor and against Plaintiff Luminos Interactive LLC, and grant the following relief:
1. That the Complaint be dismissed in its entirety, with prejudice, and that Plaintiff take nothing by its claims;
2. That judgment be entered in favor of Redstone and against Luminos on each and every claim and cause of action asserted in the Complaint;
3. That Redstone be awarded its reasonable attorney's fees and costs incurred in the defense of this action, pursuant to 17 U.S.C. § 505 and any other applicable provision of law;
4. That Redstone be awarded such other and further relief as this Court deems just, proper, and equitable under the circumstances.
JURY DEMAND
Pursuant to Rule 38(b) of the Federal Rules of Civil Procedure, Defendant Redstone Gaming Corp. hereby demands a trial by jury on all issues and claims in this action so triable as of right.
Dated: April 22, 2024
Respectfully submitted,
CALDERWOOD & HARKNESS LLP
By: ________
Catherine Bloom (CA Bar No. 247831) Alan Ngo (CA Bar No. 298456) Omar Siddiqui (CA Bar No. 312774) Christy Bauer (CA Bar No. 305219) 600 South Grand Avenue, Suite 4400 Los Angeles, California 90071 Telephone: (213) 555-7400 Facsimile: (213) 555-7401
Email: cbloom@calderwoodharkness.com
Email: ango@calderwoodharkness.com
Email: osiddiqui@calderwoodharkness.com
Email: cbauer@calderwoodharkness.com
Attorneys for Defendant Redstone Gaming Corp.
THORNGATE & ASSOCIATES, PC
By: ________
Patricia Thorngate (NV Bar No. 10482) 300 South Fourth Street, Suite 1100 Las Vegas, Nevada 89101 Telephone: (702) 555-3200 Facsimile: (702) 555-3201
Email: pthorngate@thorngatelaw.com
Local Counsel for Defendant Redstone Gaming Corp.
CERTIFICATE OF SERVICE
I hereby certify that on April 22, 2024, the foregoing Defendant Redstone Gaming Corp.'s Answer and Affirmative Defenses to Plaintiff's Complaint was filed with the Clerk of the Court for the United States District Court, District of Nevada, using the CM/ECF electronic filing system. Pursuant to the Court's electronic filing procedures, all parties registered to receive electronic notifications through CM/ECF were served with a copy of this filing via electronic transmission, including the following counsel of record for Plaintiff:
Daniel Hargrove, Esq. Megan Forsyth, Esq. HARGROVE, TANAKA & WHITMORE LLP 1400 Congress Avenue, Suite 900 Austin, Texas 78701 Telephone: (512) 555-6100
Email: dhargrove@htwlaw.com
Email: mforsyth@htwlaw.com
Counsel for Plaintiff Luminos Interactive LLC
By: ________
Catherine Bloom CALDERWOOD & HARKNESS LLP
LUMINOS INTERACTIVE LLC, a Texas limited liability company,
Plaintiff,
Case No.: 2:24-cv-00587-RWL
v.
Hon. Rebecca W. Langford
REDSTONE GAMING CORP., a Delaware corporation,
Defendant.

UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

ANSWER TO PLAINTIFF'S COMPLAINT

AFFIRMATIVE DEFENSES

PRAYER FOR RELIEF

JURY DEMAND

CALDERWOOD & HARKNESS LLP

THORNGATE & ASSOCIATES, PC

CERTIFICATE OF SERVICE

Record

Parties

Dates

Amounts