Copyright Law Update – November 30, 2023

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Copyright Law Update — November 30, 2023
By Matt Hersh

Matt’s Copyright Law Update: Yesterday I wrote for the IP Law Daily about a new cert petition involving attorney fees. The case involves The Game of Life, the 1960s classic (which itself was a remake of an 1860s version!) that at one point ranked only second to Monopoly in terms of worldwide popularity. Sadly, the litigation over the game has lasted almost as long as the game itself. The developer of the game has been in a pitched battle with the game’s designer over the rights to the game. The developer eventually won – a court found the designer’s work was “for hire,” so all the rights remained with the developer.

But then the battle shifted to attorney fees. The developer wanted them. The designer didn’t want to pay them. The trial court, and then the First Circuit, sided with the designer. The designer’s case was a loser, the courts held, but it wasn’t “objectively unreasonable.” And the other factors came out a wash. So no dice.

Now the developer wants the Supreme Court to intervene. His petition points to a split on attorney fees brewing in the circuit courts. The Fifth and Seventh Circuits apply a presumption in favor of awarding fees, the petition notes, while the Eighth and Ninth Circuits apply no presumption at all. The First Circuit, the petition argues, takes the even more extreme view that as long as the losing party took an objectively reasonable position, there will almost never be a fee award.

Personally, I doubt this is the right vehicle for the case. (To me, the petitioners over-read the First Circuit caselaw to make it seem more aggressive than it is.) But it’s a great backgrounder on attorney fees if you are interested. More at this link.

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