Key Points

  • The Fifth Circuit affirmed summary judgment for Leyline Publishing and related defendants on all claims brought by game designer Shawn Thomas and The Tabletop Adventure LLC.
  • The court held the second licensing agreement was a valid Texas-law contract and that Leyline's agreement to pay, not its actual payment, triggered its license to use and sell the content, including unbilled work.
  • The derivative-works claim failed because the plaintiffs never identified the allegedly infringing content, and the agreement the plaintiffs drafted did not restrict derivative uses.
  • The name-and-image, defamation, misappropriation, Lanham Act and unjust enrichment claims failed because the descriptions of Thomas were true and authorized and a valid contract governed the work; a cease-and-desist letter could not revoke the agreement.
  • The court considered only arguments raised in the district court and treated new supporting arguments made on appeal as forfeited.

A federal appeals court ruled Nov. 4 that a Texas publisher may keep selling a therapeutic role-playing game built on a designer's work. The court held that a licensing agreement the designer drafted himself authorized the sales, even after he tried to back out of the project.

A three-judge panel of the U.S. Court of Appeals for the Fifth Circuit affirmed summary judgment for Leyline Publishing LLC, its affiliate Leyline Education PLLC, psychologist Anthony Bean and therapist Alicia Figliuolo. Judge Carl E. Stewart wrote the opinion for a panel that also included Chief Judge Elrod and Judge King. The ruling ends the copyright, trademark, defamation and Lanham Act claims that designer Shawn Thomas and his company, The Tabletop Adventure LLC, brought over the game "Realms of Kymoria."

The panel held that the contract licensed Leyline to use everything Thomas delivered, including work he never billed for. It held that "Leyline's agreement to pay for TableTop's content—not its ultimate payment—triggers its license to use and sell the content." The opinion uses "TableTop" for Thomas and his company together, and "Leyline" for Bean's two businesses.

Thomas began writing characters and stories for the game in 2018, according to the opinion. He is an advocate of using tabletop role-playing games, a genre of which "Dungeons & Dragons" is a well-known example, to help people who struggle with anxiety or other psychological disorders. In 2021 he earned a therapeutic game-master certification from Geek Therapeutics, Bean's practice, which uses video games, comic books and other fan interests to improve mental health.

After Thomas appeared on a Geek Therapeutics podcast hosted by Figliuolo in early 2022, the parties entered into two licensing agreements. Both sides agree the first, under which Leyline would pay $50,000 for the content, is no longer in force. The second agreement, which Thomas's company drafted and the parties executed in March 2022, named Thomas "Creative Director." It set a rate of 12 cents per word for writing and editing. It also let Leyline pay for content meant for a Kickstarter campaign in installments over 10 months, starting after the campaign funded.

The partnership broke down over a reported change to the Open Game License, a public copyright license issued by Wizards of the Coast, which owns Dungeons & Dragons, that lets developers build compatible games. Thomas's side worried that the change would force it to grant Wizards of the Coast a perpetual license to the Kymoria content. It proposed rebuilding the game on a new system of its own. Leyline objected that games abandoning the Dungeons & Dragons system had generally failed in the market.

In March 2023, Leyline said it would proceed under the agreement. Thomas's company sent a cease-and-desist letter through its lawyer the next month, and Thomas and the company sued in the Northern District of Texas in December 2024. The district court denied a temporary restraining order and preliminary injunction and later granted summary judgment to Leyline.

On appeal, Thomas's side argued that the agreement licensed only content Leyline had already paid for. In the district court, it had claimed more than 3,000 hours of work it had not yet billed. The panel noted that the company conceded every invoice it submitted was paid in full. It also found that the agreement's Kickstarter terms contemplated payment after Leyline earned revenue from the content. "TableTop's alternative reading is not reasonable," Stewart wrote.

The panel also rejected a derivative-works claim. A derivative work is one "based upon one or more preexisting works," and copyright owners hold the exclusive right to prepare them. "Even on appeal, TableTop still fails to explain what derivative-work content Leyline has allegedly used without its authorization," Stewart wrote. The agreement made no mention of derivative works, and Thomas's company, Stewart added, "as drafter of the SLA, could have included language to that effect. But it did not."

On the trademark claim, the court noted that Bean had applied to register "Realms of Kymoria" on Thomas's behalf and that the application was later withdrawn. The panel held that the contract, not any mark, supplied Leyline's rights. "Thus, it was not the (non-existent) RoK trademark that authorized Leyline to use, sell, and incorporate TableTop's RoK content into its business model—it was the SLA," Stewart wrote.

Thomas's name-and-image claims targeted 2024 marketing that called him a founder and co-creator of the game and displayed his headshot. The court held that the cease-and-desist letter could not revoke a binding contract. It also held that the descriptions were true, and that Thomas's own complaint described him in the same terms. "In other words, TableTop cannot re-write history," Stewart wrote, "simply because its relationship with Leyline has soured." The panel also noted that the record showed Thomas was the only person who had ever called himself "Creative Director."

The court rejected the unjust enrichment claim because a valid contract governed the work. "But TableTop's failure to bill Leyline was its decision—not Leyline's," Stewart wrote.

Leyline had argued that all of the appellate arguments were forfeited, meaning lost because they were not raised in the district court. The panel found that four of five had been raised at least in part below. It took up the fifth, on derivative works, because Leyline had briefed that issue and the district court had decided it. But the court said it would "limit our discussion to its original arguments and consider any new supporting arguments forfeited." It also declined to address libel, slander and invasion-of-privacy claims that the company did not brief on appeal.

The affirmance leaves in place the district court's summary judgment for Leyline and its dismissal of the suit.