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Markham Concepts, Inc., et al. v. Hasbro, Inc., et al.
Paid petition · United States Court of Appeals for the First Circuit, No. 19-1927 · judgment June 14, 2021
Before the decision, about 2.1× the 4.1% base rate. The model weighted this up for a First Circuit decision below, counsel with five or more prior petitions here, and a circuit split argued in the petition, and down for a business respondent.
Question presented
Federal law generally bestows upon authors and other creators a copyright in the work they produce. One critical exception under both the Copyright Act of 1909 (“1909 Act”), Pub. L. No. 60-349, 35 Stat. 1075, and the current Copyright Act of 1976 (“1976 Act”), Pub. L. No. 94-553, 90 Stat. 2541, is provided by the “works made for hire” doctrine. Historically, the workfor-hire doctrine applied only to works created in the course of a common law employer-employee relationship. The 1909 Act thus provided that copyrights in works for hire belong to the creator’s “employer.” 35 Stat. at 1087-88. In the 1960s, however, the Second and Ninth Circuits—the principal fora for U.S. copyright litigation—created an entirely new class of works covered by the work-for-hire doctrine, namely works produced by independent contractors at the “instance and expense” of a commissioning party. Other circuits later adopted the same rule and applied it to cases under both the 1909 and 1976 Acts. In Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989), this Court unanimously rejected the expansion of the work-for-hire doctrine to independent contractors as untethered to text and history. But because that case arose under the 1976 Act, the Court did not address whether the test could nonetheless continue to be applied under 1909 Act. That question controls ownership of copyrights in countless works created before the 1976 Act, copyrights that will endure for decades yet to come. The question presented is: Whether a party that commissions a work from an independent contractor qualifies as the creator’s “employer” within the meaning of the Copyright Act of 1909’s work-for-hire provision.
Counsel of record
For petitioner
Kevin K. Russell
Goldstein and Russell, P.C.
For respondent
David Bergstrand Jinkins
Thompson Coburn LLP
Case
Conference history
Distributed for 2 conferences
Amicus briefs
5 cert-stage
Proceedings
- Mar 28 2022Petition DENIED.
- Mar 09 2022DISTRIBUTED for Conference of 3/25/2022.
- Mar 08 2022Reply of petitioners Markham Concepts, Inc., et al. filed. (Distributed)
- Feb 22 2022Brief of respondent Hasbro, Inc. in opposition filed.
- Feb 22 2022Brief of respondents Dawn Linkletter Griffin, et al. in opposition filed.
- Feb 22 2022Brief of respondent Reuben Klamer in opposition filed.
- Jan 21 2022Suggestion of death and motion under Rule 35.1 filed to substitute The Reuben B. Klamer Living Trust as a respondent in place of Reuben Klamer, deceased.
- Jan 14 2022Motion to extend the time to file a response is granted and the time is extended to and including February 22, 2022, for all respondents. See Rule 30.1.
- Jan 06 2022Motion to extend the time to file a response is granted and the time is extended to and including February 22, 2022. See Rule 30.1.
- Jan 05 2022Motion of respondents Dawn Linkletter Griffin, et al. to extend the time to file a response from January 20, 2022 to February 21, 2022, submitted to The Clerk.
- Jan 04 2022Motion to extend the time to file a response is granted and the time is extended to and including February 22, 2022. See Rule 30.1.
- Jan 03 2022Motion of respondent Hasbro, Inc. to extend the time to file a response from January 20, 2022 to February 21, 2022, submitted to The Clerk.
- Dec 29 2021Motion of respondent Reuben Klamer to extend the time to file a response from January 20, 2022 to February 21, 2022, submitted to The Clerk.
- Dec 21 2021Response Requested. (Due January 20, 2022)
- Dec 15 2021DISTRIBUTED for Conference of 1/7/2022.
- Dec 15 2021Amicus brief of Public Knowledge, Lita Rosario-Richardson, Esq., Library Futures Institute, and Fight For The Future not accepted for filing. (December 15, 2021 -- Duplicate submission)
- Dec 15 2021Brief amicus curiae of William Morris Endeavor Entertainment LLC filed. (Distributed)
- Dec 15 2021Brief amicus curiae of California Society of Entertainment Lawyers filed. (Distributed)
- Dec 15 2021Brief amici curiae of Larry Lieber, et al. filed. (Distributed)
- Dec 15 2021Brief amici curiae of Public Knowledge, et al. filed. (Distributed)
- Dec 15 2021Brief amici curiae of Screen Actors Guild-American Federation of Television and Radio Artists and The Authors Guild, Inc. filed. (Distributed)
- Dec 01 2021Waiver of right of respondent Hasbro, Inc. to respond filed.
- Dec 01 2021Waiver of right of respondent Reuben Klamer to respond filed.
- Dec 01 2021Waiver of right of respondents Dawn Linkletter Griffin, et al. to respond filed.
- Nov 10 2021Petition for a writ of certiorari filed. (Response due December 15, 2021)