A recent Law 360 story by Katie Buehler, “’Petition Watch: NLRB GC Authority, Copyright Atty Fees”, reports that Toy maker Hasbro Inc. asked the justices in a Nov. 20 petition to reverse a First Circuit panel's June refusal to award its lawyers $1.9 million in attorney fees after defeating a copyright suit over the Game of Life.  The appellate panel found the copyright claims brought against Hasbro and heirs of the game developer Reuben Klamer were not objectively "unreasonable," and therefore didn't warrant the requested attorney fees under Section 505 of the Copyright Act.

Lorraine Markham, widow of game developer BIll Markham, and her husband's company, Markham Concepts Inc., had sued Hasbro and Klamer's heirs for royalties for the iconic 1960s board game and control of its intellectual property.  The First Circuit panel uses a highly restrictive test to determine whether prevailing parties in copyright lawsuits are entitled to attorney fees and costs, Hasbro argued in its petition.  Unlike the Fifth, Seventh, Eighth and Ninth circuits, the First Circuit views fees as available "only if the plaintiff's position was 'objectively quite weak,'" according to the company's petition.

The Supreme Court should address this circuit split and determine the proper standard for reviewing attorney fee requests under Section 505 of the Copyright Act, Hasbro said.  "The conflict is intractable, and the only resolution is this court's intervention," the company said.  Lorraine Markham and Markham Concepts haven't filed a response to the Hasbro and Klamer high court petition yet.

At the First Circuit, the Markham entities argued against the attorney fee awards by pointing to a Rhode Island federal judge's ruling, which sided with Hasbro and found the game was made on a "work for hire" basis, but also found the claims "objectively reasonable."

The case is Hasbro Inc. et al. v. Markham Concepts Inc. et al., case number 23-565.