Case 2:24-cv-02387-SM-MBN Document 33 Filed 05/02/25 Page 1 of 16

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

MATTHEW KELSEY MARTINEAU, CIVIL ACTION

Plaintiff

VERSUS NO. 24-2387

BUNGIE, INC., SECTION: “E” (5)

Defendant

ORDER AND REASONS

Before the Court is a motion to dismiss filed by Defendant Bungie, Inc.

(“Defendant”).1 Plaintiff Matthew Kelsey Martineau (“Plaintiff”) filed an opposition.2

Defendant filed a reply.3

Also before the Court is Plaintiff’s motion to strike certain exhibits attached to

Defendant’s motion to dismiss.4 The Defendant filed an opposition.5

BACKGROUND

This is a copyright infringement suit in which Plaintiff alleges Defendant’s video

game Destiny 2 copied original, protected elements of Plaintiff’s original written works

without consent.6 Plaintiff alleges that in 2013 and 2014 he authored an original work (the

“Original Work”) under the pen name “Caspar Cole.”7 Plaintiff allegedly published his

Original Work on www.WordPress.com (“WordPress”), which he alleges is freely

accessible to internet users.8

1 R. Doc. 26.
2 R. Doc. 29.
3 R. Doc. 31.
4 R. Doc. 29-1
5 R. Doc. 32.
6 See generally R. Doc. 24.
7 Id. at ¶ 14.
8 Id. at ¶ 15.

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PLAINTIFF’S ORIGINAL WORK

Plaintiff alleges he owns Copyright Registration TX 9-339-250, the copyright for

his Original Work.9 According to the allegations of Plaintiff’s amended complaint,

Plaintiff’s Original Work, a series of short writings,10 is set in multiple locations, including

Earth and other planets.11 Plaintiff alleges the Original Work features the “Red Legion, a

powerful military force, that is embroiled in an unending cycle of warfare.”12 Plaintiff

alleges the Red Legion is known for “brutal tactics,” the use of flamethrowers known as

“flame atomizers,” and “war beasts called ‘miogas.’”13 Plaintiff alleges “[t]he Red Legion is

structured hierarchically.”14 An individual named “Yinnerah” is the leader of the Red

Legion.15 Plaintiff alleges Yinnerah was once a “lowly court jester.”16 In Plaintiff’s Original

Work, Yinnerah plots to invade Earth.17 Plaintiff alleges Yinnerah’s intent is to seize

“Tononob Station to further his goals of dominating Earth.”18 Plaintiff alleges Tononob

Station is “a massive celestial entity hovering above Earth that houses valuable assets.”19

Plaintiff further alleges that in his Original Work, “messages are continually

transmitted through beacons that update the reader on different events.”20 Some of these

messages transmitted through beacons “reference a weapon called an ‘atonizer’ that has

the potential to ‘spell doom’ for the conquered population through the use of an ‘enhanced

9 Id. at ¶¶ 13, 222.

10 The Defendant refers to Plaintiff’s Original Work as “a 115-page collection of free verse poems, lyrical
odes, and shortform epistolary writings.” R. Doc. 32 at p. 2.
11 R. Doc. 24 at ¶ 21.
12 Id. at ¶ 22.
13 Id. at ¶ 23.
14 Id. at ¶ 24.
15 Id. at ¶ 25.
16 Id.
17 Id. at ¶ 27.
18 Id. at ¶ 30.
19 Id. at ¶ 29.
20 Id. at ¶ 31.

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beam.’”21 Plaintiff alleges the beacon messages warn those receiving the messages using

an “input panel.”22 Plaintiff alleges “Red Legion Analyzation Team 232 monitors the

activities of the Red Legion.”23 The Original Work allegedly discusses “transversion

technology, which allows individuals to merge minds and consciousness into different

beings across different timelines.”24 Plaintiff alleges that in his poem “Our Minds,” which

is a part of the Original Work, “an unknown entity from a distant future communicates

through transversion to merge with a receiver’s consciousness.”25

DEFENDANT’S DESTINY 2

Plaintiff alleges that the video game developed by the Defendant, “Destiny 2,” is

“the infringing work.”26 Plaintiff alleges “one of the sources [Defendant] accessed and

copied” while creating Destiny 2 was Plaintiff’s “copyrighted work which was published

and easily accessible on WordPress.”27 Plaintiff alleges the development team for Destiny

2 “scrap[ped] a majority” of its work “midway through development” and was left with

“sixteen (16) months to completely start over.”28 Plaintiff alleges Defendant released

Destiny 2 on September 6, 2017.29

Plaintiff alleges that, in the Destiny 2 video game, players must defend Earth from

the Red Legion, which is led by the main antagonist “Dominus Ghaul.”30 Plaintiff alleges

in Destiny 2 “[t]he Red Legion attacks ‘the Traveler,’ a powerful celestial entity that hovers

21 Id. at ¶ 32.
22 Id. at ¶ 33.
23 Id. at ¶ 34.
24 Id. at ¶ 35.
25 Id. at ¶ 36.
26 Id. at ¶¶ 32-83.
27 Id. at ¶¶ 39-67.
28 Id. at ¶¶ 41-42.
29 Id. at ¶ 70.
30 Id.

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above the Last City.”31 Plaintiff alleges the “Traveler is straddled by the Red Legion’s war

machinery, which includes prominent use of flame throwers.”32 Plaintiff alleges Dominus

Ghaul claims “the Traveler and its light belong to him.”33 Plaintiff alleges Destiny 2 players

fight “war-beasts” and “board ships” in a “battle” with “the Red Legion.”34

Plaintiff alleges that in Destiny 2 Dominus Ghaul and his lieutenant intend to use

the Traveler “to install Ghaul as the emperor of the conquered land.”35 Plaintiff alleges

Dominus Ghaul and his lieutenant “confront a prisoner, the speaker for the Traveler, who

refuses to choose Ghaul as its representative.”36 Plaintiff alleges that in Destiny 2, “players

must hand over a booster to activate a beacon that shares a message from Zavala, the

leader of the Guardians.”37 Plaintiff alleges that, throughout Destiny 2, the Red Legion’s

“ultimate goal” is “to capture the Traveler and use its light to empower Dominus Ghaul.”38

Plaintiff alleges Destiny 2 is “based directly” on his Original Work.39

PROCEDURAL HISTORY

On October 2, 2024, Plaintiff filed a complaint against Defendant for infringing on

Plaintiff’s copyright by copying without consent “the characters, storyline, and other

protectable expression” from the Original Work.40 On December 20, 2024, Defendant

moved to dismiss Plaintiff’s complaint pursuant to Federal Rule of Civil Procedure

12(b)(6).41 Post-briefing,42 the Court granted Plaintiff leave to file an amended complaint

31 Id. at ¶ 72.
32 Id. at ¶ 73.
33 Id. at ¶ 74.
34 Id. at ¶ 75.
35 Id. at ¶ 76.
36 Id. at ¶ 77.
37 Id. at ¶ 81.
38 Id. at ¶ 82.
39 Id. at ¶ 83.
40 R. Doc. 1 at ¶¶ 158-66.
41 R. Doc. 11.
42 R. Doc. 21; R. Doc. 22.

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addressing the arguments Defendant raised in its motion to dismiss.43 Plaintiff timely

filed an amended complaint.44 The Court then denied Defendant’s motion to dismiss

without prejudice.45

On April 7, 2025, Defendant filed a motion to dismiss Plaintiff’s first amended

complaint pursuant to Rule 12(b)(6).46 Defendant argues Plaintiff has insufficiently

pleaded access, factual copying, and substantial similarity.47 Defendant urges the Court to

decide the motion by conducting a side-by-side analysis of the Original Work and Destiny

2.48 Plaintiff responds that a side-by-side analysis is improper at the motion to dismiss

stage and that it has properly alleged a copyright infringement claim.49

LEGAL STANDARD

Pursuant to Federal Rule of Civil Procedure 12(b)(6), a district court may dismiss

a complaint for failure to state a claim upon which relief may be granted if the plaintiff

has not set forth factual allegations in support of his claim that would entitle him to

relief.50 “To survive a motion to dismiss, a complaint must contain sufficient factual

matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”51 “A claim

has facial plausibility when the plaintiff pleads factual content that allows the court to

draw the reasonable inference that the defendant is liable for the misconduct alleged.”52

43 R. Doc. 23. The Court did not order Plaintiff to “fix” the deficiencies identified in the Defendant’s first
motion to dismiss. The Court did order the Plaintiff to address the arguments raised in the Defendant’s first
motion to dismiss but did not take a position on the validity of those arguments. Id. at p. 5.
44 R. Doc. 24.
45 R. Doc. 25.
46 R. Doc. 26.
47 Id. at pp. 14-30.
48 R. Doc. 26-1 at p. 13; R. Doc. 31 at pp. 6-8.
49 R. Doc. 30.
50 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir.

2007).
51 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570).
52 Id.

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The Court, however, does not accept as true legal conclusions or mere conclusory

statements, and “conclusory allegations or legal conclusions masquerading as factual

conclusions will not suffice to prevent a motion to dismiss.”53 Indeed, “threadbare recitals

of elements of a cause of action, supported by mere conclusory statements” or “naked

assertion[s] devoid of further factual enhancement” are not sufficient.54

“[W]here the well-pleaded facts do not permit the court to infer more than the

mere possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—that

the pleader is entitled to relief.”55 However, “legal conclusions can provide the framework

of a complaint, [if] they [are] supported by factual allegations.”56 “Determining whether a

complaint states a plausible claim for relief [is] . . . a context-specific task that requires

the reviewing court to draw on its judicial experience and common sense.”57 “Although

detailed factual allegations are not required,” “[d]ismissal is appropriate when the

complaint ‘on its face show[s] a bar to relief.’”58 Whether a plaintiff “will be able to offer

sufficient proof to support [his or her] claims is more appropriate in the context of a

motion for summary judgment or a trial on the merits” rather than in a motion to

dismiss.59 “[I]ntensive disputes of material fact . . . are usually more appropriate for

summary judgment.”60

53 S. Christian Leadership Conf. v. Sup. Ct. of the State of La., 252 F.3d 781, 786 (5th Cir. 2001) (citing
Fernandez-Montes v. Allied Pilots Ass’n, 987 F.2d 278, 284 (5th Cir. 1993)).
54 Iqbal, 556 U.S. at 663, 678 (citations omitted).
55 Id. at 679 (quoting FED. R. CIV. P. 8(a)(2)).
56 Id. “Factual allegations must be enough to raise a right to relief above the speculative level.” Twombly,

550 U.S. at 555.

57 Iqbal, 556 U.S. at 679.
58 Cutrer v. McMillan, 308 Fed. App’x 819, 820 (5th Cir. 2009) (per curiam) (citations omitted).
59 Smith v. GE Healthcare, Inc., No. 19-00492, 2019 WL 4565246, at *7 (W.D. La. Sept. 4, 2019).
60 Dong Phuong Bakery, Inc. v. Gemini Soc’y, LLC, No. 21-1109, 2022 WL 898750, at *5 (E.D. La. Mar. 28,

2022).

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“When reviewing a motion to dismiss, the Court is typically confined to the

pleadings.”61 Pursuant to Federal Rule of Civil Procedure 12(d), “[i]f, on a motion under

Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded

by the court, the motion must be treated as one for summary judgment under Rule 56.”

However, under United States Court of Appeals for the Fifth Circuit precedent,

“documents that a defendant attaches to a motion to dismiss may be considered ‘if they

are referred to in the plaintiff’s complaint and are central to [his] claim.’”62

LAW AND ANALYSIS

I. The Court will not consider the attachments to the Defendant’s motion
to dismiss.

The Defendant attached what it describes as various videos of Destiny 2 gameplay

and “explanatory resources” about Destiny 2, as well as an affidavit executed by its

employee Tyson Green, to its motion to dismiss.63 The Defendant argues the Court should

consider the attachments because Destiny 2 is incorporated by reference into the First

Amended Complaint, and “the court can and should consider it in its Rule 12 copyright

infringement analysis.”64 The Defendant claims the attachments are “accurate

reproductions of the accused video campaigns, and the best way for the Court to view

them.”65 While Plaintiff does reference Destiny 2 in his complaint, he does not reference

the YouTube videos containing Destiny 2 game footage, the Destinypedia pages, or the

Tyson declaration.66 The Plaintiff’s motion to strike seeks to strike these attachments, and

61 Batiste v. Lewis, No. 17-4435, 2018 WL 2268173, at *2 (E.D. La. May 17, 2018) (citing Scanlan v. Tex.
A&M Univ., 343 F.3d 533, 536 (5th Cir. 2003)).
62 Vallery v. Am. Girl Dolls, No. 13-5066, 2015 WL 1539253, at *2 (E.D. La. Apr. 6, 2015) (quoting Causey

v. Sewell Cadillac-Chevrolet, Inc., 394 F.3d 285, 288 (5th Cir. 2004)).
63 R. Doc. 26-2; R. Doc. 26-3; R. Doc. 26-4; R. Doc. 26-5; R. Doc. 26-6; R. Doc. 26-7; R. Doc. 26-8; R. Doc.

26-9; 26-10.
64 R. Doc. 32 at p. 1.
65 Id.
66 R. Doc. 24; R. Doc. 29-1 at pp. 4-8.

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keep them from being considered in connection with the motion to dismiss, because the

attachments are incomplete and improper and were not incorporated into Plaintiff’s First

Amended Complaint.67

Because the similarity of Plaintiff’s Original Work and Defendant’s Destiny 2

“comprise[s] the sole issue[ ] in this case, and because [both works] were referred to in

the [P]laintiff’s” first amended complaint, the Defendant argues “the Court can consider”

the Original Work and Destiny 2, as well as the ”Curse of Osiris” campaign and the Tyson

declaration,68 at the motion to dismiss stage.69 This consideration, according to the

Defendant, would entail a side-by-side comparison of the Original Work and Destiny 2.

Defendant argues that, in a copyright infringement case, the works that form the basis of

the alleged infringement not only may but should be reviewed by the Court as part of the

motion to dismiss, citing Randolph I.70

The Court’s decision of whether or not to review documents outside the pleadings

when deciding a motion to dismiss is discretionary.71 In fact, if the documents outside the

pleadings are considered, the motion must be treated as one for summary judgment

unless the documents are referred to in the complaint and central to the claim.72 To treat

67 R. Doc. 29; R. Doc. 29-1.

68 Defendant represents that the First Amended Complaint contained new allegations concerning an
additional retired Destiny 2 campaign, Curse of Osiris. R. Doc. 32 at p. 3.
69 Batiste, 2018 WL 2268173, at *2, *4 (emphasis added); Vallery, 2015 WL 1539253, at *2 (first citing

Rucker v. Harlequin Enters ., Ltd., No. 12-1135, 2013 WL 707922, at *1 n.1 (S.D. Tex. Feb. 26, 2013); then
Randolph v. Dimension Films (“Randolph I”), 630 F. Supp. 2d 741, 745 (S.D. Tex. 2009); and then Walker
v. Time Life Films, Inc., 784 F.2d 44, 52 (2d Cir. 1986)) (“In copyright cases, the asserted and accused works
are ‘central’ to the infringement claim and thus may be considered.”).
70 Randolph v. Dimension Films (“Randolph II”), 634 F. Supp. 2d 779, 787 (S.D. Tex. 2009).
71 See Batiste, 2018 WL 2268173, at *2, *4; Vallery, 2015 WL 1539253, at *2; Cat & Dogma, LLC v. Target

Corp., No. 20-50674, 2021 WL 4726593, at *4 (5th Cir. Oct. 8, 2021).

72 See Brand Coupon Network, L.L.C. v. Catalina Mktg. Corp., 748 F.3d 631, 635 (5th Cir. 2014) (holding

that a court may consider documents attached to either a motion to dismiss or an opposition to that motion
“when the documents are referred to in the pleadings and are central to a plaintiff’s claims”); Walch v.
Adjutant Gen.’s Dep’t of Tex., 533 F.3d 289, 293-94 (5th Cir. 2008) (considering exhibits attached to an
opposition because “[n]o party questions the authenticity of these two documents and both were sufficiently

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an extraneous document as integral to the complaint, the complaint must “rel[y] heavily

upon [the document’s] terms and effect.”73 Furthermore, a side-by-side comparison is

appropriate only when “the original work and the allegedly infringing copy are submitted

with the pleadings and available to the court for side-by-side comparison.”74

The Plaintiff describes the YouTube videos attached to the opposition as “merely

snippets of third party derivative works that cannot be substituted for the actual

infringing Destiny 2 game,”75 and the Destinypedia excerpts as “the work of anonymous

Destiny fans randomly uploaded to a third-party website.”76 Destinypedia is a

“encyclopedia . . . edited and maintained by a dedicated group of Destiny fans.”77

Defendant has admitted it cannot produce the entirety of the relevant form of Destiny 2

for the Court’s review78 and that the attached YouTube videos and Destinypedia pages are

“third-party originating materials.”79 As Defendant admits in its reply, “[t]here is now no

feasible way for [Defendant] to provide the Court with a reviewable form of the [Red War

or Osiris] campaigns or to produce them should this matter proceed to discovery.”80

Defendant does not explain how the Court would conduct a side-by-side analysis if it does

not have Destiny 2. In opposition to the motion to strike, the Defendant relies on the

referenced in the complaint to permit their consideration on a motion to dismiss”); In re Katrina Canal
Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007) (same).
73 Chambers v. Time Warner, Inc., 282 F.3d 147 (2d Cir. 2002) (citing Int’l Audiotext Network, Inc. v. Am.

Tel. & Tel. Co., 62 F.3d 69, 72 (2d Cir. 1995)).

74 Randolph II, 634 F. Supp. 2d at 787.
75 R. Doc. 29-1 at p. 3.
76 Id. at p. 7.
77 DESTINYPEDIA, https://www.destinypedia.com (last visited April 28, 2025). The Court takes judicial

notice of Destinypedia’s existence and its homepage. FED. R. EVID. 201. Plaintiff’s first amended complaint
neither mentions nor incorporates online, fan-created Destinypedia pages. R. Doc. 24.
78 R. Doc. 26-3 at p. 3.
79 Id. at p. 4.
80 R. Doc. 31 at p. 6 (citing R. Doc. 31-3).

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declaration of Tyson Green, that the attachments “are true and accurate representations

of Destiny 2 gameplay and information.”81

Cases in which the court conducted a side-by-side analysis are rare and, in any

event, are usually less complex than this case. For example, Defendant cites Randolph v.

Dimension Films (“Randolph II”) as a case in which the Court conducted a side-by-side

analysis and granted a motion to dismiss the plaintiff’s complaint.82 In Randolph II, the

court compared “complete copies” of a children’s book and an hour and thirty-three

minute long children’s movie in a side-by-side analysis.83 The court dismissed the

plaintiff’s complaint because “the allegedly copied elements did not involve protected

expression or would not strike a layperson as being substantially similar.”84

Defendant also cites Gottlieb Development LLC v. Paramount Pictures Corp. as a

case in which the court granted a “Rule 12(b)(6) motion to dismiss and [held] that the two

works in question, which the court deemed incorporated into the complaint by reference,

were not substantially similar.”85 In Gottlieb Development, the court analyzed whether

the defendant infringed on the plaintiff’s copyright for a pinball machine by incorporating

a visual of the pinball machine in a three-and-a-half minute movie scene.86 Because of the

length of the scene, the fact that the pinball machine was “always in the background,” the

fact that the pinball machine was “never mentioned and plays no role in the plot,” and the

fact that the pinball machine was “almost always partially obscured,” the court held the

movie’s use of the pinball machine was “de minimis as a matter of law” and that “no

81 R. Doc. 32 at p. 8.
82 634 F. Supp. 2d 779.
83 Id. at 791; The Adventures of Shark Boy and Lava Girl in 3-D, https://www.imdb.com/title/tt0424774/

(last visited April 24, 2025).

84 634 F. Supp. 2d at 788.
85 590 F. Supp. 2d 625 (S.D.N.Y. 2008); R. Doc. 31 at pp. 6-7.
86 590 F. Supp. 2d at 629, 632.

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reasonable juror could find substantial similarity in the legal sense.”87 Thus, the court

dismissed the plaintiff’s copyright infringement claim.88

Defendant cites Rucker v. Harlequin Enters., LTD. and Vallery v. American Girl

Dolls as cases that “confirm” that “this Court can make a side-by-side comparison of the

works and decide whether the substantial similarity required for a claim of copyright

infringement exists as a matter of law.”89 In Rucker, the court compared “a 20-page first

chapter followed by a 5-page plot synopsis” of an unfinished romance book with a “full-

length [romance] novel.”90 The court granted the defendant’s motion to dismiss because

the plaintiff’s asserted similarities were “either stock elements of romance novels or plot

elements that naturally flow from the broad themes that the two works share with other

works in the same genre.”91

In Vallery, the court denied the pro se plaintiff leave to amend her complaint and

leave to amend her “Comparison Citings of Copyright Infringement.”92 The court

compared a 270-page “adult-oriented, dark tale” featuring a grandmother’s lost “magical

amulet,” “racial slurs,” references to “childhood drinking,” and “both a sex scene and a

scene where the father of the female protagonist sneaks into a house and kills a man in

cold blood as a favor to a family friend” with a “156-page novel geared toward young

children” “about 11–year old Cecile in Antebellum New Orleans who attends the circus

87 Id. at 632-34.
88 Id. at 634.
89 No. 12-1135, 2013 WL 707922 (S.D. Tex. Feb. 26, 2013); No. 13-5066, 2015 WL 1539253 (E.D. La. Apr. 6,

2015); R. Doc. 31 at pp. 6-7.

90 2013 WL 707922, at *2.
91 Id. at *6-9.
92 2015 WL 1539253, at *1.

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and while there happens to lose a beautiful (but not magical) cameo necklace that she

borrowed from her aunt.”93

This case is markedly different from those cases Defendant cites. Unlike in Gottlieb

Development, Rucker, and Vallery, even if the Court had access to Destiny 2, a side-by-

side comparison in this case would require the Court to compare completely different

formats—a collection of short written works and a video game.94 Rather than compare a

brief movie scene and a copyright for a pinball machine, like in Gottlieb Development,95

or compare two books, like in Rucker and Vallery,96 it appears the Defendant is asking

the Court to compare a collection of short writings to (1) thirteen-plus hours of third-party

originated YouTube videos of Destiny 2 and (2) several third-party originated online

Destinypedia pages.97 This case is distinguishable from Randolph II because of the length

of the Destiny 2 YouTube videos and the thirteen Destinypedia pages Defendant

submitted and the fact that this case involves adult science fiction works while Randolph

II involved less-complex works made for children.98 Even if the Court had access to a

complete version of Destiny 2, this case would require a much more complicated side-by-

side analysis than those conducted in the caselaw cited by Defendant.99

93 Id. at *3-4.
94 R. Doc. 24; R. Doc. 26-1; Gottlieb Dev., 590 F. Supp. 2d 625; Rucker, 2013 WL 707922; Vallery, 2015 WL
1539253.
95 590 F. Supp. 2d 625.
96 2013 WL 707922; 2015 WL 1539253.
97 R. Doc. 26-2; R. Doc. 26-4 (video on file with the Court and available at
https://www.youtube.com/watch?v=zzBmOeYmN_M); R. Doc. 26-5 (video on file with the Court and
available at https://www.youtube.com/watch?v=WAw1g2tHN3s); R. Doc. 26-8 (video on file with the
Court and available at https://youtu.be/4jtZpmcCM4Y?si=ypJBZHi7rKYaTya5).
98 R. Doc. 24; Randolph II, 634 F. Supp. 2d 779.
99 The Court also highlights that this case features two nuanced science fiction/fantasy works. For the Court

to adequately assess the similarity of both works and whether Plaintiff’s Original Work and Destiny 2 share
only unprotectable ideas, elements, and characters, expert assistance may be helpful.

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Because the Court cannot conduct a side-by-side analysis of Plaintiff’s Original

Work and Destiny 2, it cannot determine whether substantial similarity exists at the

motion to dismiss stage. “[A]t the pleading stage, the Court is limited to the facts alleged

in the complaint; it is not acting as a factfinder. A decision on the merits based on the

Court’s judgment of the similarity” of the Original Work and Destiny 2 “is inappropriate

at this stage of the proceedings.”100 “[T]he question of substantial similarity,” which is an

element of Plaintiff’s copyright claim, “typically should be left to the factfinder.”101 A side-

by-side analysis is premature at the motion to dismiss stage because the Court is currently

limited to a review of the plaintiff’s well-pleaded factual allegations.102

The Court will not consider the exhibits attached to Defendant’s motion to dismiss

and will not convert the Defendant’s motion to dismiss to a motion for summary

judgment. There has not been sufficient time for discovery and the attachments are

admittedly of third-party origination. Their authenticity has not been established.

Converting the motion to dismiss into a motion for summary judgment at this stage would

likely lead to continuances and delays for further discovery under Federal Rule of Civil

Procedure 56(f).103

II. The Plaintiff has sufficiently pleaded a claim for copyright

infringement.

The Court now turns to the sufficiency of Plaintiff’s allegations in his first amended

complaint. “To establish a claim for copyright infringement, a plaintiff must prove that:

100 Batiste, 2018 WL 2268173, at *4; see also Cat & Dogma, LLC, 2021 WL 4726593, at *3 (“Target raises

several arguments challenging the degree of originality underlying Dogma’s selection and arrangement of
the elements in The Design. However, reaching the merits of those arguments requires us to go beyond the
pleadings and is improper on a motion to dismiss under FRCP 12(b)(6).”).
101 Nola Spice Designs, L.L.C. v. Haydel Enters., Inc., 783 F.3d 527, 550 (5th Cir. 2015) (quoting Peel & Co.

v. Rug Mkt., 238 F.3d 391, 395 (5th Cir. 2001)); Cat & Dogma, LLC, 2021 WL 4726593, at *4.
102 Batiste, 2018 WL 2268173, at *4; see also Cat & Dogma, LLC, 2021 WL 4726593, at *3-4.
103 See Mitsui Sumitomo Ins. Co. (H.K.) v. P&O Ports Louisiana, Inc., No. 07-1538, 2007 WL 2463308, at

*2 (E.D. La. Aug. 28, 2007).

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(1) he owns a valid copyright and (2) the defendant copied constituent elements of the

plaintiff’s work that are original.”104 “The second element is met where a plaintiff proves

‘(1) factual copying and (2) substantial similarity.’”105

As to the first element, Plaintiff alleges he “is the owner of valid and enforceable

copyrights in his published works” and that he “has registered or applied for registration

for copyrights in said works, including United States Copyright Registration TX 9-339-

250.”106

As to factual copying, Plaintiff alleges that Defendant “not only drew inspiration

from [Plaintiff’s] work but directly copied it when creating Destiny 2.”107 Factual copying,

part of the second element of a copyright infringement claim, “can be proved by direct or

circumstantial evidence.”108 If there is no direct evidence of copying, “factual copying may

be inferred from (1) proof that the defendant had access to the copyrighted work prior to

creation of the infringing work and (2) probative similarity.”109 Plaintiff does not allege

any direct evidence of copying, but does allege Defendant’s access to his Original Work

prior to its creation of Destiny 2 and that there is probative similarity between the

Plaintiff’s Original Work and Destiny 2.110

Plaintiff alleges his Original Work and “Destiny 2 are substantially similar” and

provides examples of similarities between his Original Work and Destiny 2.111 Substantial

104 Positive Black Talk Inc. v. Cash Money Records, Inc., 394 F.3d 357, 367 (5th Cir. 2004) (first citing Gen.
Universal Sys. v. Lee, 379 F.3d 131, 141 (5th Cir. 2004); then Szabo v. Errisson, 68 F.3d 940, 942 (5th Cir.
1995)), abrogated on other grounds by Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154 (2010).
105 Baisden v. I’m Ready Prods., Inc., 693 F.3d 491, 499 (5th Cir. 2012) (quoting Positive Black Talk, 394

F.3d at 367).
106 R. Doc. 24 at ¶¶ 13, 222.
107 Id. at ¶ 67.
108 Armour v. Knowles, 512 F.3d 147, 152 (5th Cir. 2007).
109 Positive Black Talk, 394 F.3d at 367-68 (quoting Peel & Co., 238 F.3d at 394).
110 Id. at ¶¶ 15-16, 46, 48, 51, 60, 66-67, 130, 125, 134, 138, 146, 167, 177, 223.
111 Id. at ¶¶ 67, 97, 108, 112, 116-18, 127, 129, 134, 145-46, 166-67, 169, 179-80, 184.

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similarity is analyzed under the “ordinary observer or audience test.” This test is satisfied

if a layman detects “piracy ‘without any aid or suggestion or critical analysis by others.

The reaction of the public to the matter should be spontaneous and immediate.”112 Plaintiff

includes two tables detailing the “directly corresponding elements” and characters in the

Original Work and Destiny 2.113

Plaintiff alleges both works “detail the rise of a young and ambitious alien with the

intent of dividing and conquering Earth in order to gain strategic asset(s).”114 Plaintiff

alleges the characters in both works show “similar attitudes, histories, and mindsets,” and

that “it is only through a very unique set of actions” that the characters initially invade

Earth.115 Plaintiff points out that Dominus Ghaul’s “rise . . . replicates” Yinnerah’s and

alleges that both Dominus Ghaul and Yinnerah are “urged, guided and assisted by outcast

mentors . . . to overthrow their leaders to rise to power.”116

According to Plaintiff, in both the Original Work and Destiny 2, “rebels fend off

Red Legion invaders on Earth against backdrops of burning settlements, ravaged streets,

and utter chaos.”117 Plaintiff alleges the Red Legion invaders in both Plaintiff’s Original

Work and Destiny 2 “mimic one another” and have overlapping goals,118 and both works

feature leaders driven by “hubris,” “a desire for control,” and “perceived weakness of the”

opposition.119 Plaintiff alleges there are similarities in the technology used by the

112 Peel & Co., 238 F.3d at 398 (first quoting Harold Lloyd Corp. v. Witwer, 65 F.2d 1, 18 (9th Cir. 1933);
then citing 4 MELVILLE B. NIMMER & DAVID NIMMER, NIMMER ON COPYRIGHT § 13.03[E][1][a], at 13-79
(2000)).
113 R. Doc. 24 at ¶¶ 114, 202.
114 Id. at ¶ 96.
115 Id. at ¶ 97.
116 Id. at ¶ 98.
117 Id. at ¶ 99.
118 Id. at ¶ 100.
119 Id. at ¶¶ 101-02.

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characters in both works.120 Plaintiff alleges both works feature rebel factions uprising and

resisting the Red Legion “at the same moment in both plotlines,”121 and that the Red

Legion is described similarly in both works and behaves similarly in both works.122

Plaintiff has sufficiently alleged the elements of an action for copyright

infringement.

CONCLUSION

IT IS ORDERED that Defendant’s motion to dismiss is DENIED.123

IT IS FURTHER ORDERED that Plaintiff’s motion to strike is DENIED as

moot.124

New Orleans, Louisiana, this 2nd day of May, 2025.

________________________________
SUSIE MORGAN
UNITED STATES DISTRICT JUDGE

120 Id. at ¶¶ 103, 108.

121 Id. at ¶ 104.
122 Id. at ¶¶ 105-06.
123 R. Doc. 26.
124 R. Doc. 29

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