Background
Shawn Thomas developed “Realms of Kymoria” (RoK), a therapeutic tabletop role-playing game, and formed The Tabletop Adventure, L.L.C. (together, “TableTop”) to market its intellectual property. After Thomas obtained a Therapeutic Game Master Certification from Geek Therapeutics and appeared on its podcast, TableTop entered two licensing agreements with Anthony Bean’s Leyline entities. The parties agree the first agreement is no longer operable. The second licensing agreement (“SLA”), drafted by TableTop and signed by Bean on March 7, 2022, made Thomas “Creative Director,” authorized Leyline to sell, lease, and use purchased RoK content, and established writing rates, invoicing procedures, royalties, and deferred Kickstarter payment schedules.
The collaboration produced an RoK QuickStart Kit, and Bean filed a “Realms of Kymoria” trademark application with Thomas’s authorization; the application was later withdrawn. The relationship deteriorated after reports that Wizards of the Coast might change its Open Game License. TableTop proposed replacing the game’s Dungeons & Dragons-compatible system, while Leyline objected to the delay, expense, and commercial risk. Leyline announced in March 2023 that it would proceed under the SLA. TableTop sent a cease-and-desist letter in April 2023 and sued in December 2024.
TableTop’s nine-count complaint alleged intellectual-property infringement and unauthorized use of Thomas’s name and image. The Northern District of Texas denied preliminary injunctive relief and later granted Leyline summary judgment. It held that the SLA validly authorized the disputed uses, that TableTop had not identified unauthorized content or derivative works with competent summary-judgment evidence, and that the name-and-image and unjust-enrichment claims failed.
The Court’s Holding
Reviewing summary judgment de novo, the Fifth Circuit affirmed. It first addressed preservation: Leyline argued that all five appellate arguments were forfeited, but the court found that four had been raised to some extent below. Although TableTop conceded that it had not responded below on derivative works, Leyline had raised that issue in its summary-judgment motion, TableTop had pleaded it repeatedly, the district court addressed it, and Leyline suffered no prejudice. The panel therefore reached the merits, while treating new supporting arguments first advanced on appeal as forfeited. Libel, slander, and invasion-of-privacy arguments were not addressed because they were not briefed on appeal.
The court held that the SLA was a valid, enforceable contract under Texas law, citing TableTop’s drafting and submission of the agreement, Bean’s signature, and a year of performance and invoicing. It rejected TableTop’s argument that Leyline could use only content covered by an already-paid invoice. TableTop still had not identified specific content Leyline used or planned to use without authorization, which independently warranted affirmance. The court also held that the SLA’s deferred-payment provisions, including payments funded by later Kickstarter revenue, made TableTop’s advance-payment interpretation unreasonable. Under the agreement’s plain terms, Leyline’s agreement to pay—not ultimate payment—triggered its license to use and sell content TableTop submitted, including unbilled content. The court did not separately analyze the breach theory TableTop no longer meaningfully pursued.
On derivative works, the panel again emphasized TableTop’s failure, both below and on appeal, to identify the allegedly unauthorized derivative content. It also reasoned that the SLA broadly authorized marketing, sale, and use of supplied RoK content and did not prohibit derivative marketing material. On trademark, the court held that the SLA—not a nonexistent RoK trademark—authorized Leyline’s activities; permission to use Leyline’s “own branding” did not require it to stop marketing the game as Realms of Kymoria.
The court also affirmed judgment on defamation, misappropriation, Lanham Act false-endorsement and unfair-competition, and unjust-enrichment claims. Describing Thomas as RoK’s founder or co-creator was true and consistent with TableTop’s own complaint, and withdrawal from the project did not unilaterally revoke the binding SLA. The SLA also specified Thomas’s Creative Director role and artist credit; the record did not show Leyline actually using that title. Finally, unjust enrichment was barred because the valid SLA governed the relevant services and compensation, and TableTop’s decision not to submit invoices did not create a genuine dispute over coverage.
Key Takeaways
- A nonmovant must identify specific record evidence and particular unauthorized content; uncertainty about what content is at issue does not itself defeat summary judgment.
- The SLA’s payment schedules defeated TableTop’s proposed requirement of advance payment before any authorized use.
- The panel reached derivative works despite the response-brief omission, but forfeited new supporting appellate arguments.
- Withdrawal and a cease-and-desist letter did not unilaterally revoke the binding agreement or make truthful creator descriptions actionable.
Why It Matters
The decision is a record-specific application of contract and summary-judgment principles, not a categorical rule that every content license attaches before payment. Contract drafters should address invoicing, deferred compensation, post-withdrawal marketing, derivative materials, branding, and creator credits expressly. Litigants must also preserve both claims and supporting arguments and identify the precise works and evidence underlying alleged infringement.