United States District Court, D. Rhode Island
MARKHAM CONCEPTS, INC.; SUSAN GARRETSON; and LORRAINE MARKHAM, individually and in her capacity as trustee of the Bill and Lorraine Markham Exemption Trust and the Lorraine Markham Family Trust, Plaintiffs,
HASBRO, INC.; REUBEN KLAMER; DAWN LINKLETTER GRIFFIN; SHARON LINKLETTER; MICHAEL LINKLETTER; LAURA LINKLETTER RICH; DENNIS LINKLETTER; THOMAS FEIMAN, in his capacity as co-trustee of the Irvin S. and Ida Mae Atkins Family Trust; ROBERT MILLER, in his capacity as co-trustee of the Irvin S. and Ida Mae Atkins Family Trust; and MAX CANDIOTTY, in his capacity as co-trustee of the Irvin S. and Ida Mae Atkins Family Trust, Defendants.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
WILLIAM E. SMITH CHIEF JUDGE.
people of a certain age, who grew up in the America of the
1960s and 70s - where television meant three channels and
shows like Bonanza, Star Trek, and The
Art Linkletter Show (more on that to come); where cars
were made in America, period; and where phones were connected
to wires, not cell towers - the Game of Life was a gangbuster
hit found (it seemed) in every household in the country,
alongside Twister, Clue, and Monopoly. In the Game of Life,
the winner retires to “Millionaire Acres.” In
this suit, life imitates art as the heirs of toy developer
Bill Markham have sued over what they see as proceeds from
the exploitation of the Game that they have been wrongfully
Game of Life was inspired by the first board game invented by
Milton Bradley himself, in 1860, called the Checkered Game of
Life. It sold millions of copies after hitting the market in
1960, and continues to sell to this day. Based on the idea
that “life's a game that can be played well, or
badly, ” historian Jill Lepore writes in The New
Yorker, “[o]nly a handful of games have had as
long a shelf life.” Jill Lepore, The Meaning of
Life, The New Yorker, May 21, 2007, at 38, 39. This
case, filed in 2015, has had a shelf life of its own. But
after two amendments to the complaint and considerable motion
practice, the parties tried to the Court (in Los
Angeles and Rhode Island) Plaintiffs' third
claim for relief, which asks for a declaratory judgment that
Markham's heirs control the Game's intellectual
property. Specifically, Plaintiffs ask the Court to find that
they have termination rights under section 304 of the
Copyright Act of 1976.
these, Plaintiffs would be able to acquire the copyrights to
the Game that were long ago transferred to Defendant Hasbro,
Inc., 's predecessor-in-interest, the Milton Bradley
Company. Plaintiffs lose this turn, however: the facts found
below show that the physical creation of the Game's
prototype was done by Markham's erstwhile employees -
Grace Chambers and Leonard Israel - as well as Markham's
wife, Sue, and unnamed parties hired by Markham to furnish
finishing touches. They also show that this work was done at
the instance and expense of Defendant and toy developer
Findings of Fact
series of events leading to the Game hitting the market in 1960
began a year earlier. See, e.g., Exs. JTX 9, JTX 11,
JTX 12. In 1959, a Reuben Klamer traveled from his home in
Beverly Hills, California, to Milton Bradley's
headquarters in Springfield, Massachusetts. Ex. JTX 9; Nov.
16, 2017, Trial Tr. (“Trial Tr. I”) 23-26. Klamer
was a toy developer with myriad contacts in the industry, and
had come to pitch Milton Bradley executives a concept for a
new toy. See Trial Tr. I 18-26.
Bradley passed on the pitch. Id. at 25. But the
company's president at the time, Jim Shay, asked Klamer
to develop a product idea to commemorate Milton Bradley's
1960 centennial. Id. at 23; Ex. JTX 9. Intrigued,
Klamer agreed to do so and went searching for inspiration in
Milton Bradley's archive, where he stumbled upon an old
copy of the Checkered Game of Life, see Ex. JTX 9,
Trial Tr. I 23, which had been invented by the company's
namesake just before the Civil War to “forcibly impress
upon the minds of youth the great moral principles of virtue
and vice, ” Lepore, supra, at 41. The concept
Klamer developed on the trip back home to California was to
update the Checkered Game of Life to reflect post-World War
II American society and values. See Trial Tr. I 25-27;
Exs. JTX 10., PTX 20, PTX 275.
Klamer was mostly an ideas man - he needed help refining his
concept and, importantly, translating it into a prototype he
could actually sell to Milton Bradley. See Trial Tr.
I 28-31, 64; Ex. JTX 10. For this he reached out to one of
his toy-industry contacts, Bill Markham. Trial Tr. I 28-33.
An experienced advertiser, Markham was head of a firm set to
that purpose named California Product Development
(“CPD”). See JTX 2; Trial Tr. I 112;
Nov. 17, 2017, Trial Tr. (“Trial Tr. II”) 64. CPD
employed two artists at the time, Grace Chambers and Leonard
Israel, who were very good in Klamer's estimation, and
whose presence at CPD convinced Klamer to hire Markham's
firm over others he considered. Trial Tr. I 28-31. Chambers
had received her training from the Art Center College of
Design in Los Angeles, Trial Tr. II 60; Israel his from the
Chicago Art Institute, Trial Tr. I 100.
agreed to take on the project in the summer of 1959.
See Trial Tr. I 29-33. With little time to waste -
Milton Bradley wanted the product ready for market by January
1, 1960, see id. at 55 - Markham and his team went
to work, see id. at 34-35. As to who did what during
the approximately six weeks it took to produce the prototype,
the Court credits especially the testimony of Chambers and
Israel, which the Court heard live in Los
Angeles.See generally Trial Tr. II 58-111
(Chambers); Trial Tr. I 99-136 (Israel). Neither has received
a cent in royalties from the Game, nor have they any
financial interest in the outcome of this suit. See
Trial Tr. I 108-09; Trial Tr. II 58, 80. The testimony each
gave was largely consistent with that of the other. See
generally Trial Tr. II 58-111; Trial Tr. I 99-136. Both,
moreover, had only good things to say about their time
working for Markham at CPD and with Klamer on the project.
See Trial Tr. I 101; Trial Tr. II 65- 66.
testified that labor was divided: Klamer and Markham combined
to provide the big ideas, many ahead of their time.
See Trial Tr. I 34, 103, 107-08, 127; Trial Tr. II
67-71, 75; see also Ex. JTX 25. These included that
the Game would be played on a circuitous path; the Game's
board would contain three-dimensional elements; the
Game's object would be to achieve various life
milestones; and a spinner would dictate movement of the
Game's players. See Trial Tr. I 107, 126-29;
Trial Tr. II 68-71; Ex. JTX 25. Klamer also visited
Markham's firm once or twice a week during development to
give real-time edits to Chambers and Israel while they worked
- the former on the game board, the latter on the box cover -
to produce a physical instantiation of Klamer's and
Markham's ideas. Trial Tr. I 103-04, 106-08, 129, 130-33;
Trial Tr. II 71-78.
and Israel both testified that they - not Markham or Klamer -
were the ones at CPD who built the prototype. Trial Tr. I
103-04, 106-07, 130-33; Trial Tr. II 71-78. Asked who
constructed the prototype's game board, Chambers said
that she did “most of it.” Trial Tr. II 72.
Israel went further, testifying that “once it was
decided what we wanted to have on the board, [Chambers] was
the one who put it all together and did the final art work on
it.” Trial Tr. I 106. Chambers was the one who built
the houses, the mountains, and the elevated track out of
balsa wood, cardboard, and colored pantone paper. Trial Tr.
II 99-103. Chambers also placed the printing on the track and
constructed a cardboard spinner. See id. at 101,
132-33. Some of these objects, such as the spinner and the
mountains, were later converted to the plastic replicas used
for the prototype by an outside firm Markham hired for that
purpose. See Trial Tr. I 121-22; Trial Tr. II 103-
04; Ex. JTX 13. An outside firm also bound the game board and
printed the play money that was part of the prototype.
See Trial Tr. II 106-07; Ex. JTX 13.
for the prototype's box cover was Israel's handiwork,
according to both his and Chambers's testimony. Trial Tr.
I 103- 04, 110-11; Trial Tr. II 72, 74. Israel created
several small-scale sketches as possibilities for the box
cover, from which Markham and Klamer selected the one they
preferred. Trial Tr. I 103. The favored design was then made
by Chambers into a box cover of proper scale. Id. at
134. As with the board, Markham had “nothing to
do” with the physical creation of the box cover.
Id. at 107. Indeed, it was the testimony of both
Israel and Chambers that Markham was often attending to other
matters at CPD during the time the prototype was taking
physical form. Id. at 116; Trial Tr. II 73-74.
third major component to the prototype besides the board and
the box - the rules - were a collective, iterative effort.
Trial Tr. I 105-06, 116-18; Trial Tr. II 76-77, 105. Once the
Game was operational, everyone in and around the CPD offices
at the time - Markham, Klamer, Chambers, and Israel - would
play it, and then throw out suggested rule changes for the
group to consider. Trial Tr. I 105-06, 118-19, 128; Trial Tr.
II 76-77, 105. Some of these were tried and, because of some
unforeseen disruptive effect on another rule, discarded.
Trial Tr. I 105- 06. Some, however, were ultimately adopted,
then copied by Sue Markham (Bill's wife, and a copywriter
by profession) into the prototype's rule book. Trial Tr.
I 105-06, 116-18, 128; Trial Tr. II 105.
completed, Markham and Klamer presented the prototype to
Milton Bradley executives, including its vice president, Mel
Taft, on or around August 10, 1959, at the famous
Chasen's restaurant in Hollywood, California.
See Trial Tr. I 38-39, 65-68, 86; Exs. JTX 25, JTX
29. Also at Chasen's was radio and television personality
Art Linkletter. See Trial Tr. I 33, 39; Exs. JTX 25,
JTX 29. He was there on behalf of Link Research Corporation
(“Link”), the firm Linkletter had founded with
Klamer to develop consumer products that could be marketed
using Linkletter's considerable celebrity. See
Trial Tr. I 20, 33; Exs. JTX 29, JTX 34, JTX 39, JTX 42. Part
of Klamer's pitch to Milton Bradley at the Chasen's
meeting was that Linkletter could help promote the Game.
See Trial Tr. I 38-39; Exs. JTX 11, JTX 12. The
pitch worked: Taft and Shea were impressed by the prototype,
and left the restaurant thinking that with some tweaks it
could be a commercial success. See Exs. JTX 18, JTX
19, JTX 20, JTX 21, JTX 25, JTX 33; Trial Tr. I 40-41. Soon
thereafter, on August 19, Klamer mailed the prototype to
Milton Bradley. Ex. JTX 12; Trial Tr. I 96.
agreements regarding rights to the Game followed.
See Exs. JTX 1, JTX 2. The first, entered on
September 21, 1959, was a License Agreement between Link and
Milton Bradley. Ex. JTX 1. This agreement gave Milton Bradley
the exclusive right to manufacture and market the Game, which
Link “had . . . designed and constructed.”
Id. The License Agreement also allowed Milton
Bradley to use Linkletter's name and image in its
advertising of the Game, and required Linkletter to plug the
Game fifty-two times on his nationally televised show.
Id. In return, Link received a six percent royalty
on sales of the Game and an ...