Shawn Thomas; The Tabletop Adventure, L.L.C. v. Leyline Publishing, L.L.C., doing business as Geek Therapeutics; Leyline Education, P.L.L.C.; Anthony Bean, PhD; Alicia Figliuolo — Fifth Circuit affirms summary judgment because a licensing agreement authorized use of tabletop-game content and truthful creator credits

Background

Shawn Thomas developed Realms of Kymoria, a therapeutic tabletop role-playing game, and formed The Tabletop Adventure, L.L.C. to market its intellectual property. Thomas and the company, collectively called TableTop by the court, entered two licensing agreements with Leyline Publishing and related defendants. The parties agreed that the first agreement was no longer operable. The second licensing agreement, executed in March 2022, governed the appeal. It authorized Leyline to sell, lease, and use purchased game content, contemplated later payment schedules, and reserved Thomas’s ownership of the overall Kymoria setting and intellectual property unless a later purchase agreement superseded those terms.

The relationship deteriorated after the parties disagreed about responding to anticipated changes in Wizards of the Coast’s Open Game License. TableTop sent a cease-and-desist letter in April 2023 and sued in December 2024. Its nine-count complaint produced two broad groups of claims: intellectual-property claims concerning Leyline’s continued marketing of the game, and claims concerning use of Thomas’s name and image. The district court granted Leyline summary judgment, finding the second agreement valid and broad enough to authorize the disputed uses. It also rejected the name-and-image claims because describing Thomas as the game’s creator was true and contractually authorized.

The Court’s Holding

Reviewing summary judgment de novo, the Fifth Circuit addressed the merits of TableTop’s original appellate arguments but treated new supporting arguments as forfeited. Although TableTop had not responded below to the derivative-work issue, the court reached it because Leyline had raised it, the district court decided it, and Leyline could respond on appeal. The panel held that the second agreement was valid and enforceable under Texas law: TableTop drafted and submitted it, Dr. Bean signed it, and both sides performed for approximately a year. The absence of Thomas’s signature did not invalidate it because signatures were not expressly required as a condition of assent.

The court rejected TableTop’s contention that Leyline could use only content covered by already-paid invoices. TableTop never identified specific copyrighted content that Leyline used or planned to use without a license, independently warranting affirmance. The agreement’s text also contemplated revenue generation before some payments, including staggered Kickstarter payments. Thus, Leyline’s agreement to pay, rather than completed payment, triggered authorization for submitted content, including content not yet billed. The derivative-work claim separately failed because TableTop never identified the allegedly unauthorized derivative material, and the agreement did not prohibit derivative marketing material.

The panel further held that language permitting Leyline’s own branding did not prohibit marketing the game as Realms of Kymoria; the agreement, not ownership of a trademark, supplied the relevant authorization. It affirmed judgment on defamation, misappropriation, false-endorsement, and unfair-competition theories because founder and co-creator descriptions were true and authorized, and withdrawal did not revoke the binding contract. It also noted that TableTop identified no instance in which Leyline actually called Thomas “Creative Director.” Finally, the valid agreement governing compensation barred unjust enrichment. The court affirmed summary judgment for defendants in full.

Key Takeaways

• A content owner opposing summary judgment must identify the specific material allegedly used without authorization rather than rely on a general assertion that unpaid content must be unlicensed.
• The agreement’s deferred-payment provisions defeated TableTop’s argument that Leyline had to pay every invoice before using any submitted content.
• The derivative-work ruling rested both on TableTop’s failure to identify the disputed material and on the agreement’s lack of any restriction against derivative marketing material.
• Reserving ownership of the overall Kymoria intellectual property did not negate the separate contractual authorization to market and sell the game content.
• Truthful descriptions of Thomas as a founder or co-creator did not become defamatory, deceptive, or misappropriative merely because the parties’ relationship had ended.

Why It Matters

The decision illustrates how copyright and trademark disputes arising from a collaborative creative venture can turn on the precise allocation of contractual rights rather than on ownership alone. The Fifth Circuit treated the license’s payment, branding, and marketing provisions as an integrated whole, while repeatedly emphasizing the nonmoving party’s obligation to connect its infringement theories to identifiable content and record evidence.

The preservation analysis is also qualified and case-specific. The court did not adopt an absolute bar against every argument omitted from a summary-judgment response: it reached the derivative-work issue because it appeared in the complaint, Leyline’s motion, and the district court’s decision, and Leyline suffered no prejudice. At the same time, it refused to consider new substantive supporting arguments first developed on appeal.