Bill Markham designed the game’s prototype in 1959 as a work for hire under the 1909 Copyright Act, and his successors in interest therefore don’t have the termination rights needed to reassert control over the copyright, the opinion by Judge Kermit V. Lipez said.
The successors said that Markham was an author of the game under the 1976 Copyright Act, but the court refused to apply that act retroactively. Instead, it applied the instance and expense test under the 1909 Act.
Reuben Klamer, whose business partner was Art Linkletter, came up with the concept for the game after talking to the Milton Bradley Co. about an idea to celebrate the company’s centennial, the court said.
Klamer then approached Markham for help creating the actual components, the U.S. Court of Appeals for the First Circuit said. Markham’s employees designed the board, pieces, and rules with input from Klamer and Markham, it said.
The evidence also supported the district court’s conclusion that Klamer funded and assumed the risk of the enterprise until it was sold to Milton Bradley, which was later acquired by Hasbro, the court said.
Because Markham designed the game at the instance and expense of Klamer, it was a work for hire, and his successors have no interest in the copyright, the court said Monday.
Judges O. Rogeriee Thompson and William J. Kayatta Jr. joined the opinion.
Caldwalader Wickersham & Taft LLP represented Markham’s successors. Holland & Knight LLP represented Hasbro. Lathrop GPM LLP and Glaser Weil Fink Howard Avchen & Shapiro LLP represented Klamer. Hinckley Allen & Snyder LLP and Thompson Coburn LLP represented the Linkletters.
The case is Markham Concepts v. Hasbro, Inc., 2021 BL 220552, 1st Cir., No. 19-1927, 6/14/21.
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