No. 16-4483 ___________________________

Bruce Munro; Bruce Munro Studio

lllllllllllllllllllllPlaintiffs - Appellants

v.

Lucy Activewear, Inc.; Lucy Apparel, LLC; VF Outdoor, Inc.; VF Corporation

lllllllllllllllllllllDefendants - Appellees ____________

Appeal from United States District Court for the District of Minnesota - Minneapolis ____________

Submitted: May 16, 2018 Filed: August 9, 2018 ____________ Before SHEPHERD, MELLOY, and GRASZ, Circuit Judges. ____________ SHEPHERD, Circuit Judge.

Bruce Munro and Bruce Munro Studio (collectively “Munro”) appeal the district court’s dismissal of his complaint against Lucy Activewear, Inc., Lucy Apparel, LLC, VF Outdoor, Inc., and VF Corporation (collectively “Lucy”) and the denial of his motion to amend his complaint based on a finding of futility. Munro argues that the district court erred when it found that his tortious interference claim was preempted by the Copyright Act1 and that his proposed amended trade dress, trademark, and fraud claims were futile. We disagree with Munro except as to his trademark claim. Thus, we affirm in part and reverse and remand in part.

I. Background

Munro is an artist best known for his works “Field of Light” and “Forest of Light”—“large-scale, immersive, light-based installations, and exhibitions.” Proposed Amend. Compl. ¶ 1. Munro alleges that Lucy contacted him and proposed a Lucy advertising and promotional campaign featuring Munro’s work. He further claims that, relying on a promise of confidentiality, he shared additional information with Lucy about his prior work, including “attendance figures, achieved online/multi- media traffic, and promotional methods used for the exhibitions.” He further disclosed that he was in talks with public officials in Boston, Massachusetts about creating a public exhibition in the city. Following these disclosures, Munro says that Lucy stopped contacting him and that communications with Boston officials ceased soon thereafter as well.

In October 2013, Lucy launched a light exhibition and advertising campaign for Lucy in Boston. The exhibition, titled “Light Forest,” was an interactive light installation that responded to the participants’ movements. An advertising campaign associated with the exhibit crossed several media platforms, including television, print, internet, and in-store displays.

In 2015, Munro filed a complaint against Lucy in Texas state court alleging that, by presenting the “Light Forest” exhibition and advertising campaign in Boston, Lucy infringed on Munro’s trademark and trade dress and usurped a prospective business opportunity. In September 2015, Lucy removed the case to federal court and

1 17 U.S.C. § 101 et seq.

-2- then filed a motion to dismiss for lack of personal jurisdiction, or, in the alternative, to transfer venue. Lucy also filed a separate Fed. R. Civ. P. Rule 12(b)(6) motion to dismiss for failure to state a claim. In January 2016, the case was transferred to the federal district court in Minnesota. The following month, Lucy renewed its Rule 12(b)(6) motion. Munro responded, but in March 2016, he also moved to amend his complaint. In his proposed amended complaint, Munro alleged: trademark and trade dress infringement, trademark and trade dress dilution, false designation of origin and unfair competition, misappropriation, fraud, tortious interference with prospective business opportunities, and unfair competition. The district court found that Munro’