Yesterday, the U.S. Supreme Court declined to review Hasbro's bench trial victory in a dispute over ownership rights to The Game of Life, with the heirs of the designer of The Game of Life. Markham Concepts Inc. argued lower courts relied on what it called the misguided "instance and expense" rule created in the 1960s to find the game a "work for hire." The lower courts said Bill Markham and his employees created it at the behest of Hasbro's predecessor, Milton Bradley.
However, aside from the game in question, the decision may have impacted on the attempts of the estate of Steve Ditko and other legendary comic book creators to force Marvel to revert copyrights to characters Spider-Man, Strange, and others. In response, Marvel Comics filed their own lawsuits to dismiss these claims, as referring to work-for-hire practices which would be ineligible for copyright reversion.
Bill Markham created the game and the prototype, and recent attempts to get copyright returned to Markham's estate was refused by the court. It determined the creation of the game was work for hire, created at the request of the publisher, and at their expense, and so was owned by Hasbro. But the Supreme Court was petitioned to clarify the status of works made for hire before the 1976 Copyright Act, and still covered by the 1909 Copyright Act.
Stan Lee's brother Larry Lieber and the estates of Steve Ditko, Gene Colan, Don Heck and Don Rico have filed an amicus brief in support of Markham with comic book lawyer supreme Marc Toberoff. The filing stated;
It would be hard to find a better example of this than the amici who worked as freelancers from home, on their own steam, with no contract, no financial security, and no employment benefits, but without whom Marvel might not even be in business today. These prolific freelance writers and artists, who redefined the impecunious comic book business in the 1960's are literal poster-children for the termination right, exemplifying the very imbalance Congress sought to rectify. One need only look at the billion-dollar franchises these freelancers were instrumental in creating—Spider-Man, Thor, Iron Man, Dr. Strange, Falcon, Guardians of the Galaxy, Black Widow, Hawkeye, Blade—but have zero financial benefits from, to understand the importance of resolving the issues presented, justifying this Court's review. The pervasive use of the "instance and expense" test to eradicate the termination rights of such freelancers is not only unmoored from the 1909 Act, but it invites historical revisionism since the termination right does not vest until fifty-six years after publication. 17 U.S.C. § 304(c)(3). Corporate behemoths like Marvel, which were built on the success of such creations, but barely had one or two employees at the time it purchased such freelance material (for a pittance), now use their current stature to impose corporate authorship of "work for hire" under conditions that bore no resemblance to this, and an so-called "test" that enables them to do so. Inevitably, application of the malleable "instance and expense" test nearly always ends in a finding of "work for hire," with results that are often counterintuitive and unfair.
They were joined by William Morris Endeavor, the talent agency who also sought clarification over the law, citing the rules of the screenplay for Star Wars differed from those for Empire Strikes Back because of the year each was created. As did the performing guild SAG-AFTRA, the guild for the industry's performers, citing how 200 of the Rolling Stone's Top 500 songs of all time were created before the 1976 cut off – and 300 after.