Providence, RI. The U.S. Court of Appeals for the First Circuit has unanimously ruled that game developer Reuben Klamer is the rightful author and copyright owner of the classic board game, The Game of Life.
In a case-resolving decision, the appellate court affirmed the district court’s bench trial ruling finding that the appellants possessed no termination rights in the copyrights to for the board game. The First Circuit also held that the work-for-hire “instance and expense” test, governed by the 1909 Copyright Act, was properly applied by the district court in determining that the appellants, the successors-in-interest to Bill Markham, did not posess any copyright termination rights.
“It has been an honor to represent Mr. Klamer and protect his rights as the author of this board game classic,” said Nixon Peabody intellectual property litigation partner Erica J. Van Loon, who co-led the litigation and trial team for Klamer. “We are pleased that the First Circuit has aligned with the well-reasoned work-for-hire ruling of the district court. It is especially fitting that this vindication has come within days of Mr. Klamer’s 99th birthday.”
Inspired by the Milton Bradley Company archival game, The Checkered Game of Life, Reuben Klamer created The Game of Life in 1959 to commemorate the company’s centennial anniversary in 1960. Klamer hired Bill Markham’s company to construct the game prototype, primarily based on the skill of Markham’s employees, Grace Falco Chambers and Leonard Israel. Hasbro, a co-defendant in this case, went on to acquire the Milton Bradley Company in the 1980s and continues to license the rights to the game from Mr. Klamer and his former business partners’ successors-in-interest (the Link successors), which include Art Linkletter’s heirs. Bill Markham’s successors-in-interest brought suit against Hasbro in 2015 to terminate the license and assignment and seek control of the game copyright. Klamer and the Link successors intervened.
The legal team, co-led by Van Loon, first secured a trial victory for Klamer in 2019 in the United States District Court for Rhode Island following a more than 60-year dispute regarding credit for creating the board game classic. During the trial, key testimony from two of Markham’s former employees, who worked on the 1959 prototype, Grace Falco Chambers and Leonard Israel, was used among additional evidence to persuade the court that Markham’s work on the prototype of the game was a work-for-hire for Mr. Klamer.
In December 2020, the successors-in-interest in Markham appealed the case before the U.S. Court of Appeals for the First Circuit, contending that Markham should be recognized as the author of the game under the work-for-hire doctrine specified in the Copyright Act of 1976. The First Circuit's held with the June 14, 2021 ruling, that the 1976 Copyright Act could not be applied retroactively and that the application of the “instance and expense” test under the 1909 Copyright Act was the correct work-for-hire test. Accordingly, Markham had no right of copyright termination and the lower court’s decision that Mr. Klamer was the author of The Game of Life was affirmed.