Markham Concepts, Inc. v. Pardo ( 2023 )


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  •           United States Court of Appeals
    For the First Circuit
    No. 19-1927
    MARKHAM CONCEPTS, INC.; LORRAINE MARKHAM, individually and in
    her capacity as trustee of the Bill and Lorraine Markham
    Exemption Trust and the Lorraine Markham Family Trust;
    SUSAN GARRETSON,
    Plaintiffs, Appellants,
    v.
    HASBRO, INC.; BEATRICE PARDO, in her capacity as successor co-
    trustee of the Reuben B. Klamer Living Trust; PAUL GLASS, in his
    capacity as successor co-trustee of the Reuben B. Klamer Living
    Trust; 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; MAX
    CANDIOTTY, in his capacity as co-trustee of the Irvin S. and Ida
    Mae Atkins Family Trust,
    Defendants, Appellees,
    IDA MAE ATKINS,
    Defendant.
    No. 21-1957
    MARKHAM CONCEPTS, INC.; LORRAINE MARKHAM, individually and in
    her capacity as trustee of the Bill and Lorraine Markham
    Exemption Trust and the Lorraine Markham Family Trust;
    SUSAN GARRETSON,
    Plaintiffs, Appellees
    v.
    HASBRO, INC.,
    Defendant, Appellant.
    BEATRICE PARDO, in her capacity as successor co-trustee of the
    Reuben B. Klamer Living Trust; PAUL GLASS, in his capacity as
    successor co-trustee of the Reuben B. Klamer Living Trust; 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; MAX CANDIOTTY, in his
    capacity as co-trustee of the Irvin S. and Ida Mae Atkins Family
    Trust; IDA MAE ATKINS,
    Defendants.
    No. 21-1958
    MARKHAM CONCEPTS, INC.; LORRAINE MARKHAM, individually and in
    her capacity as trustee of the Bill and Lorraine Markham
    Exemption Trust and the Lorraine Markham Family Trust;
    SUSAN GARRETSON,
    Plaintiffs, Appellees
    v.
    BEATRICE PARDO, in her capacity as successor co-trustee of the
    Reuben B. Klamer Living Trust; PAUL GLASS, in his capacity as
    successor co-trustee of the Reuben B. Klamer Living Trust,
    Defendants, Appellants
    HASBRO, INC., 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; MAX
    CANDIOTTY, in his capacity as co-trustee of the Irvin S. and Ida
    Mae Atkins Family Trust; IDA MAE ATKINS,
    Defendants.
    APPEALS FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF RHODE ISLAND
    [Hon. William E. Smith, U.S. District Judge]
    Before
    Kayatta, Lipez, and Thompson, Circuit Judges.
    Patricia L. Glaser, with whom Erica J. Van Loon, Joshua J.
    Pollack, Nixon Peabody LLP, Thomas P. Burke Jr., and Glaser Weil
    Fink Howard Avchen & Shapiro LLP were on brief, for defendants-
    appellants Beatrice Pardo and Paul Glass.
    Joshua C. Krumholz, with whom Courtney L. Batliner, Mark T.
    Goracke, Holland & Knight LLP, Patricia K. Rocha, and Adler Pollock
    & Sheehan PC were on brief, for defendant-appellant Hasbro, Inc.
    David A. Cole, with whom John T. Moehringer and Cadwalader,
    Wickersham & Taft LLP were on brief, for plaintiffs-appellees.
    June 22, 2023
    LIPEZ,   Circuit       Judge.      In   this   copyright     action
    involving ownership rights to the classic board game, The Game of
    Life, conveyed more than six decades ago, the prevailing defendants
    seek   attorney's   fees   from    the     unsuccessful   plaintiffs.     The
    district court denied fees for the trial-level proceedings, and
    the defendants claim on appeal that the court abused its discretion
    in doing so. The defendants also moved in this court for appellate
    attorney's fees.    The Copyright Act of 1976 permits the award of
    reasonable fees and costs to a prevailing party, see 
    17 U.S.C. § 505
    , and the Supreme Court has endorsed a set of nonexclusive
    factors to be considered by courts in evaluating whether to award
    fees, see Fogerty v. Fantasy, Inc., 
    510 U.S. 517
    , 534 & n.19
    (1994).      After carefully considering those factors and other
    aspects of the record, we affirm the district court's decision to
    deny fees and, primarily for the same reasons, decline to award
    fees for the appeal.
    I.
    As detailed in our opinion on the merits, this case arose
    from a long-running dispute between Reuben Klamer, a toy developer
    who originated the idea for The Game of Life, and Bill Markham, a
    game designer whom Klamer asked to design and build the game
    prototype.     See Markham Concepts, Inc. v. Hasbro, Inc., 
    1 F.4th 74
    , 77-78 (1st Cir. 2021), cert. denied, 
    142 S. Ct. 1414 (2022)
    .
    The game was a huge success, and for decades following its debut
    - 4 -
    in 1960, Markham and Klamer clashed over who should receive primary
    credit for its creation.   In general, Markham "felt that he was
    not given proper public recognition for his role" and that the
    royalty he received was "unfairly low."   
    Id. at 78-79
    .
    Markham died in 1993.     This case was brought by his
    successors-in-interest against Klamer, who has since died,1 and
    others (including Hasbro, Inc., the company that now holds rights
    to The Game of Life) in an attempt, inter alia, to renegotiate the
    original assignment of rights in the game.2   As the district court
    observed, the plaintiffs' copyright claim "boiled down to two
    dispositive questions: did Bill Markham create the [p]rototype
    (such that he could fairly be considered its author); and was the
    [p]rototype a work made for hire?"     Markham Concepts, Inc. v.
    Hasbro, Inc., No. 15-419 WES, 
    2021 WL 5161772
    , at *1 (D.R.I. Nov.
    1 Klamer died in September 2021, after we issued our merits
    decision but before the district court ruled on the fee requests.
    In Klamer's place, this action has been pursued by the co-trustees
    of the Reuben B. Klamer Living Trust. For convenience, we refer
    to Klamer when discussing arguments made in his briefs and motions.
    The Markham parties are Markham's widow, daughter, and Markham
    Concepts, Inc.
    2 The litigation originally was brought by the Markham parties
    primarily   as   a   contract   action   against   Hasbro   seeking
    reinstatement of their royalty payments, which had stopped because
    of an issue with an escrow arrangement. They subsequently amended
    their complaint to add additional causes of action against Klamer
    and other defendants, including the copyright claim adjudicated by
    the district court and addressed in our merits decision.        See
    Markham Concepts, 1 F.4th at 77. The escrow issue was resolved,
    and the parties stipulated to dismissal of the non-copyright
    claims.
    - 5 -
    5, 2021).
    Answering those questions required application of the
    Copyright Acts of 1909 and 1976.    Under the Copyright Act of 1976
    ("1976 Copyright Act"), authors may have "the power to terminate
    the grant of a copyright after a certain period of time, see 
    17 U.S.C. §§ 203
    , 304(c), 304(d), thereby permitting them to extricate
    themselves from 'ill-advised' grants made before the 'true value'
    of their work was apparent."       Markham Concepts, 1 F.4th at 79
    (quoting Mills Music, Inc. v. Snyder, 
    469 U.S. 153
    , 172-73 (1985)
    (footnote omitted)).    However, such "termination rights" do not
    extend to "work[s] made for hire."     
    17 U.S.C. § 304
    (c).   Whether
    The Game of Life was "made for hire" is governed by the Copyright
    Act of 1909 ("1909 Act"), 
    17 U.S.C. § 26
     (repealed 1978).       See
    Markham Concepts, 1 F.4th at 81.
    Following a bench trial that included testimony from
    Klamer and two employees of Markham's business who had worked on
    The Game of Life, the district court concluded that the prototype
    was indeed a work for hire created for Klamer.         See Markham
    Concepts, Inc. v. Hasbro, Inc., 
    355 F. Supp. 3d 119
    , 130 (D.R.I.
    2019).   That decision meant that Markham was not the prototype's
    author for copyright    purposes, foreclosing his successors-in-
    interest from terminating an assignment agreement that had been in
    effect, with minor adjustments, since 1959.   Id.; see also Markham
    - 6 -
    Concepts, 1 F.4th at 79.3
    In reaching its decision, the district court relied --
    over the plaintiffs' objection -- on the "instance and expense"
    test that had long been used to evaluate whether a commissioned
    work subject to the 1909 Act was made for hire.        See Markham
    Concepts, 
    355 F. Supp. 3d at 127-30
    .4   The district court did not
    3  Markham's assignment agreement ("the 1959 Assignment
    Agreement") was with Link Research Corporation, co-founded by
    Klamer and Art Linkletter (a well-known radio and television
    personality).    The agreement, inter alia, required Markham to
    assign to Link any copyright, patent, or trademark rights "to which
    he may be entitled as the inventor, designer and developer of the
    [g]ame." Markham Concepts, 1 F.4th at 85. Link separately entered
    into a license agreement with the Milton Bradley Company, giving
    Milton Bradley exclusive rights to make and sell The Game of Life
    in exchange for a six percent royalty on sales. Id. at 78. Hasbro
    subsequently acquired Milton Bradley, along with the rights to the
    game. Under Markham's initial agreement with Link, he received
    thirty percent of Link's six percent royalty (i.e., 1.8 percent of
    total royalties).    Id.  Although Markham's royalty on non-U.S.
    sales has varied over time, see infra, the domestic percentage has
    remained the same.
    4 The 1909 Act codified the longstanding principle that "a
    work created by an employee belongs to the employer, who is then
    viewed as the author and copyright holder." Markham Concepts, 1
    F.4th at 79-80.    Courts initially limited this "work for hire"
    concept to "'the traditional employer-employee relationship,' that
    is, to 'a work created by an employee acting within the scope of
    employment.'" Id. at 80 (quoting Forward v. Thorogood, 
    985 F.2d 604
    , 606 (1st Cir. 1993)). However, the work-for-hire concept was
    later expanded via the instance and expense test to include works
    created by independent contractors when the hiring party provided
    both the impetus (the "instance") and funding (the "expense") for
    the work.   See id.; see also, e.g., Marvel Characters, Inc. v.
    Kirby, 
    726 F.3d 119
    , 139 (2d Cir. 2013) (explaining that "instance"
    "refers to the extent to which the hiring party provided the
    impetus for, participated in, or had the power to supervise the
    creation of the work").      The 1976 Copyright Act contains an
    explicit, two-part definition for works for hire that applies to
    - 7 -
    address the defendants' alternative theory that the prototype
    qualified as a work for hire because it was created for Markham by
    his employees within a traditional employer-employee relationship
    -- which also would foreclose termination rights for the Markham
    parties. On appeal, we endorsed both the district court's approach
    and its outcome.   We decided that courts within the First Circuit
    remain bound by our instance and expense precedent, see Markham
    Concepts, 1 F.4th at 81-83, and held that "the evidence amply
    support[ed] the district court's conclusion that the game was
    created at the instance and expense of Klamer" and was thus a work
    for hire, id. at 86.5
    Months after we issued our decision on the merits, the
    district   court   denied   the   defendants'   pending   motions   for
    attorney's fees and costs for the trial-level proceedings.          See
    works created on or after January 1, 1978.       See 
    17 U.S.C. § 101
    ;
    see also Markham Concepts, 1 F.4th at 80.
    5 As described in our opinion on the merits, some cases suggest
    that the parties in a work-for-hire relationship can agree that
    authorship rights will belong to the work's actual creator rather
    than to the person at whose instance and expense the work is made.
    See Markham Concepts, 1 F.4th at 85 & n.7. However, work-for-hire
    status is presumed when the elements of the instance and expense
    test are met, and "courts generally demand clear and specific
    evidence" to rebut that presumption. Id. Both the district court
    and our court held that the assignment agreement between Markham
    and Link did not overcome the work-for-hire presumption. See id.
    at 85-86.
    - 8 -
    Markham Concepts, 
    2021 WL 5161772
    , at *5.6             Hasbro and Klamer filed
    separate appeals of that ruling,7 and each also filed a motion for
    an   award    of   attorney's     fees     on   appeal.8        We   subsequently
    consolidated the district court fee appeals with the motions for
    appellate fees.
    II.
    A. Legal Principles
    Section 505 of the 1976 Copyright Act allows a court, in
    its discretion, to award reasonable attorney's fees to a prevailing
    party.       See   
    17 U.S.C. § 505.9
            The   statute    "requir[es]   an
    'evenhanded' approach under which '[p]revailing plaintiffs and
    prevailing defendants are to be treated alike.'"                 Airframe Sys.,
    6 Hasbro requested fees in the amount of $1,951,323.63 and
    $10,256.45 in costs, plus $9,112.36 for travel. Klamer requested
    fees in the amount of $1,827,393.50 plus costs of $38,953.81.
    7Multiple defendants associated with Art Linkletter also were
    defendants in the copyright action and requested $583,709.50 in
    attorney's fees in the district court. They did not appeal the
    denial of those fees and have not requested appellate fees.
    8 Hasbro seeks $271,674.20 in attorney's fees on appeal, and
    Klamer seeks $238,086.34 in appellate attorney's fees.
    9 Although the 1909 Act applies to the substantive issues in
    this case, the defendants sought fees under § 505 of the 1976
    Copyright Act rather than under the comparable provision of the
    1909 Act, § 116. In its motion for appellate fees, Hasbro notes
    that it is unclear which fees provision applies to this case.
    However, the plaintiffs have not disputed the applicability of
    § 505, and the two provisions are in any event similar.       See
    Fogerty, 
    510 U.S. at 523-24
    .     We therefore presume that § 505
    applies.
    - 9 -
    Inc. v. L-3 Commc'ns Corp., 
    658 F.3d 100
    , 108 (1st Cir. 2011)
    (quoting Fogerty, 
    510 U.S. at 521, 534
    ) (second alteration in
    original).   Although "[t]here is no precise rule or formula for"
    determining whether to award attorney's fees under § 505, Fogerty,
    
    510 U.S. at 534
     (quoting Hensley v. Eckerhart, 
    461 U.S. 424
    , 436
    (1983)), the Supreme Court has endorsed "several nonexclusive
    factors to guide" a court's decision: "'frivolousness, motivation,
    objective unreasonableness (both in the factual and in the legal
    components of the case) and the need in particular circumstances
    to advance considerations of compensation and deterrence,'" 
    id.
     at
    534 n.19 (quoting Lieb v. Topstone Indus., Inc., 
    788 F.2d 151
    , 156
    (3d Cir. 1986)).    Courts considering fee requests "should give
    substantial weight to the objective reasonableness of the losing
    party's position," but "must also give due consideration to all
    other circumstances relevant to granting fees."   Kirtsaeng v. John
    Wiley & Sons, Inc., 
    579 U.S. 197
    , 199, 200 (2016).
    The relevant "other circumstances" include the purpose
    of copyright law and its objective of "enriching the general public
    through access to creative works."     
    Id. at 204
     (quoting Fogerty,
    
    510 U.S. at 527
    ).    The 1976 Copyright Act endeavors to achieve
    that goal "by striking a balance between two subsidiary aims:
    encouraging and rewarding authors' creations while also enabling
    - 10 -
    others to build on that work."    Id.10   Though guided by the Supreme
    Court's criteria and the objectives of copyright law, courts
    ultimately have "broad discretion . . . in deciding whether to
    fee-shift."    Id. at 208; see also id. at 209 ("[C]ourts must view
    all the circumstances of a case on their own terms, in light of
    the Copyright Act's essential goals.").
    With these principles in mind, we first consider the
    district court's fees determination and then address Klamer's and
    Hasbro's motions for appellate fees.
    B. Appeals from the Denial of Fees
    1.   The District Court's Decision
    In its ruling on the defendants' fee requests, which it
    10 As Klamer points out, some circuits take the view that fee
    awards under § 505 should be "the rule rather than the exception
    and should be awarded routinely." Bell v. Eagle Mountain Saginaw
    Indep. Sch. Dist., 
    27 F.4th 313
    , 326 (5th Cir. 2022) (quoting
    Virgin Records Am., Inc. v. 
    Thompson, 512
     F.3d 724, 726 (5th Cir.
    2008)). The Seventh Circuit treats that "rule" as a presumption
    that the prevailing party is entitled to a fee award and, "[i]n
    the case of prevailing defendants, . . . this presumption [is]
    'very strong.'" Mostly Memories, Inc. v. For Your Ease Only, Inc.,
    
    526 F.3d 1093
    , 1099 (7th Cir. 2008) (quoting Assessment Techs. of
    WI, LLC v. WIREdata, Inc., 
    361 F.3d 434
    , 437 (7th Cir. 2004)).
    However, other circuits have disagreed that the inquiry should
    tilt in favor of a fee award. See, e.g., Designworks Homes, Inc.
    v. Thomson Sailors Homes, L.L.C., 
    9 F.4th 961
    , 965 (8th Cir. 2021),
    cert. denied sub nom James v. Thomson Sailors Homes, L.L.C., 
    143 S. Ct. 147 (2022)
    ; Marshall & Swift/Boeckh, LLC v. Dewberry & Davis
    LLC, 
    586 F. App'x 448
    , 449 (9th Cir. 2014); Lava Records, LLC v.
    Amurao, 
    354 F. App'x 461
    , 462-63 (2d Cir. 2009). We see no reason
    to depart from our approach of applying the factors without a
    predisposition toward granting fees.    See, e.g., Airframe Sys.,
    
    658 F.3d at 108-110
    .
    - 11 -
    characterized    as   "a   close    call,"    the    district    court   focused
    primarily on the reasonableness of the Markham parties' copyright
    claim.    Markham Concepts, 
    2021 WL 5161772
    , at *1.              After briefly
    describing the competing contentions, the court concluded that
    "both sides raised plausible arguments and [p]laintiffs' claim,
    though    unsuccessful,    was     not   so   weak   as   to    be   objectively
    unreasonable to pursue."         
    Id. at *4
    .
    With respect to the governing law, the court noted that
    the plaintiffs had expert support in arguing that the Supreme
    Court, in Community for Creative Non-Violence v. Reid, 
    490 U.S. 730
     (1989),     had abrogated the        instance     and expense test       for
    identifying works for hire under the 1909 Act.                       See Markham
    Concepts, 
    2021 WL 5161772
    , at *2 (citing Melville B. Nimmer & David
    Nimmer, Nimmer on Copyright § 9.03[D] (2019)).             Primarily for that
    reason, the court "hesitate[d] to say that [p]laintiffs 'argue[d]
    for an unreasonable extension of copyright protection.'"                     Id.
    (quoting Matthews v. Freedman, 
    157 F.3d 25
    , 29 (1st Cir. 1998)
    (third alteration and emphasis in district court opinion)).11                The
    court similarly concluded that the plaintiffs' factual arguments
    were not unreasonable.      See id. at *3-4.         The court observed that
    11 The district court also considered it "somewhat telling"
    that the status of the instance and expense test after Reid had
    been raised by other litigants before the Supreme Court, "lend[ing]
    some support to the conclusion that [p]laintiffs' position was
    reasonable." Markham Concepts, 
    2021 WL 5161772
    , at *2 n.7 (citing
    Markham Concepts, 1 F.4th at 83 n.4).
    - 12 -
    "[b]oth sides came to trial with evidence to support their claims
    on all theories," id. at *3, and it stated that "[d]efendants'
    success turned on how the factfinder interpreted the evidence and
    assessed credibility," id. at *4.
    After   finding   that    the   plaintiffs'   case   was   not
    "objectively unreasonable," the court "ma[de] quick work" of the
    other Fogerty factors.   Id.   It observed that, "[b]ecause the case
    was not objectively unreasonable, it follows that it was not
    frivolous." Id. The court also detected "[n]othing in the record"
    to show "that [p]laintiffs proceeded with an improper motivation
    that justifies an award," and it did not see "any meaningful
    deterrence effect" from awarding fees to the defendants.             Id.
    Based on its assessment of the factors, "the [c]ourt conclude[d]
    that the litigation furthered the purposes of the Copyright Act,"
    leading it to deny the defendants' fee requests.        Id. at *5.
    2.   Discussion
    On appeal, the defendants insist that the district court
    misjudged the strength of both the legal and factual arguments
    advanced by the plaintiffs.        Hasbro and Klamer assert that the
    court did not adequately address the serious flaws in the Markham
    parties' contentions, disregarding what they characterize as the
    "fundamental problems with [p]laintiffs' legal positions"            and
    failing to properly weigh the evidence in the record showing that
    the prototype was a work made for hire.      The court further erred,
    - 13 -
    the defendants claim, by summarily discounting the significance of
    other factors -- particularly the plaintiffs' improper motivations
    and the need for compensation and deterrence.
    As we have noted, a district court's ruling on fees may
    be reversed only for an abuse of discretion.                   See Small Just. LLC
    v. Xcentric Ventures LLC, 
    873 F.3d 313
    , 326 (1st Cir. 2017).
    Indeed,     we    have    observed       that   such     rulings   are   entitled    to
    "extreme[]" deference, T-Peg, Inc. v. Vt. Timber Works, Inc., 
    669 F.3d 59
    , 61 (1st Cir. 2012) (quoting Airframe Sys., 
    658 F.3d at 109
    ), because "the trial court is in the best position to gauge
    the bona fides of a request for fees," Spooner v. EEN, Inc., 
    644 F.3d 62
    , 70 (1st Cir. 2011).
    With that wide berth for the district court's judgment
    call   on    fees,       we   see   no    basis    for    overriding     the   court's
    discretionary decision against fee-shifting in this case.                      The law
    applicable to the Markham parties' copyright claim was not so
    black-and-white that the district court acted unjustifiably when
    it deemed their argument against the instance and expense test as
    within the realm of reasonableness.                As we observed in our merits
    opinion, the view that the Supreme Court's decision in Reid had
    effectively abrogated the instance and expense test "has at least
    one    influential        adherent"       (i.e.,    the     Nimmer   copyright      law
    treatise).        Markham Concepts, 1 F.4th at 83 & n.3.                 In addition,
    our court's post-Reid decision invoking that test, Forward v.
    - 14 -
    Thorogood, 
    985 F.2d 604
     (1st Cir. 1993), did not expressly consider
    the test's continuing viability after Reid.              See Markham Concepts,
    1 F.4th at 81-82.         With those two factors on their side, the
    plaintiffs' attempt to piggyback on the analysis in Reid and
    diminish the precedential force of Forward was not as unreasonable
    as the defendants depict it to be.            The plaintiffs did not ask the
    district court to ignore our precedent.             Rather, they argued that
    their interpretation of Reid should be considered because it had
    not been raised by the parties in Forward.
    A similar assessment applies to the facts.                    There was
    enough ambiguity in the evidence that was before the district court
    on how The Game of Life prototype was created, as well as on the
    understanding between Markham and Klamer about who should be
    designated the prototype's author, that we cannot reject the
    court's view that the plaintiffs' factual position was not wholly
    unreasonable.      Although   the    district      court    acknowledged      that
    factual   reasonableness      was        "a     closer    call"       than   legal
    reasonableness,      it     noted        that      the     record       contained
    "contemporaneous    documents"      --    including      the   1959    Assignment
    Agreement and letters between Markham and Klamer -- indicating
    that the two men viewed Markham as the prototype's "creator" such
    that he was the copyright holder.             See Markham Concepts, 2021 WL
    - 15 -
    5161772, at *3.12
    Moreover, while testimony from Markham's employees about
    their contributions to the prototype unquestionably weakened the
    plaintiffs' claims, it was up to the district court -- as it
    observed   --   to   "interpret[]   the   evidence   and   assess[]
    credibility."   Id. at *4; see also Markham Concepts, 1 F.4th at 84
    n.6 (noting that "it was the district court's job to sort through
    the evidence and decide what and who was credible"). The testimony
    of the employees, Grace Falco Chambers and Leonard Israel, was
    elicited in November 2017 about events that had transpired more
    than a half-century earlier.   It was thus not inevitable that the
    district court would fully credit the testimony adverse to the
    Markham parties' position and construe the contemporaneous written
    evidence and prior statements against their view that Markham
    12 The 1959 Assignment Agreement between Markham and Link
    included a provision stating that, "[a]t the request of LINK,
    MARKHAM has invented, designed and developed a game tentatively
    known as 'THE GAME OF LIFE.'"     Further, the agreement required
    Markham, upon Link's request, to pursue any intellectual property
    rights "to which he may be entitled as the inventor, designer and
    developer of the [g]ame" and to assign any such rights to Link,
    "provided that said assignments will revert to MARKHAM upon the
    termination of this agreement." Markham Concepts, 1 F.4th at 85.
    Klamer also praised Markham's work in a September 1965 letter,
    stating that "You did a good job. I think that the product you
    . . . came up with was topnotch."     In that same letter, Klamer
    reported to Markham that he had asked Milton Bradley to credit
    Markham on the game packaging, but the toy company had declined to
    do so. In another early example of the evidence of Markham's role,
    a 1960 letter to a Link vice president from Milton Bradley's vice
    president referred to "the LIFE game of Bill Markham."
    - 16 -
    should be credited with creating the prototype.                                Although the
    evidence strongly indicated that any such authorship by Markham
    was at Klamer's instance and expense, we noted in our merits
    decision that it was "a closer question" whether the assignment
    agreement between Klamer and Markham rebutted the work-for-hire
    presumption created by the instance and expense test.                                Markham
    Concepts, 1 F.4th at 85.
    Contrary to         Klamer's argument, the district court's
    observation that the case "turned on how the factfinder interpreted
    the evidence and assessed credibility," Markham Concepts, 
    2021 WL 5161772
    , at *4, does not reflect legal error or an assumption that
    attorney's fees should "not be awarded unless a party succeeds on
    summary judgment."               Rather, in context, the district court's
    statement simply reflects its view that a thorough weighing of the
    strengths       of   both     sides'    evidence         in   this   case      led   to   its
    conclusion       that      the     plaintiffs'        claim    was   not       "objectively
    unreasonable to pursue."              
    Id.
    Hasbro and Klamer argue that, even if the instance and
    expense       test   did     not    apply,     the    plaintiffs'     case       was   still
    factually hopeless because the evidence unequivocally supported
    their alternative theory for classifying the prototype as a work
    for    hire    --    i.e.,    that     it    was     created   within      a    traditional
    employer-employee relationship by Chambers and Israel for Markham.
    Both    defendants         emphasize        that   the    Markham    parties'        counsel
    - 17 -
    acknowledged in a colloquy with the district court that, if the
    court found that Israel and Chambers were Markham's employees,
    there would be no termination rights.     The attorney made this
    comment while attempting to persuade the court, post-judgment, to
    reconsider its use of the instance and expense test and adjust its
    findings to declare that Markham was the author of the prototype.
    However, as we have noted, the district court did not
    address the alternative work-for-hire theory in its decision on
    the merits.   Although the court briefly referred to the theory in
    its fees decision -- recognizing the force of the defendants'
    position in light of    Chambers' and Israel's testimony     -- it
    declined to entirely discredit the plaintiffs' view of the facts.
    See Markham Concepts, 
    2021 WL 5161772
    , at *3-4 (stating, inter
    alia, that "[b]oth sides came to trial with evidence to support
    their claims on all theories" (emphasis added)).     We, in turn,
    decline to override the district court's overall assessment of the
    plaintiffs' factual case, particularly in the absence of findings
    and a ruling on the alternative theory.
    To be sure, the evidence shows substantial individual
    contributions by Israel and Chambers to the game box and board.
    The record is less clear, however, on how the various components
    of The Game of Life came together into the protectible creation
    defined by the 1976 Copyright Act as an "original work[] of
    authorship fixed in a[] tangible medium of expression."   17 U.S.C.
    - 18 -
    § 102(a).      For example, the record contains Markham's deposition
    testimony in 1989 that, before Klamer approached him about The
    Game of Life, he had invented a three-dimensional, foldable game-
    board     format,   which   was   the   style   ultimately   used   for   the
    prototype.13     In the same deposition, Markham described affixing
    the "track" to the game board for the first time when he brought
    the elements of the prototype to a meeting with Milton Bradley
    representatives at a Los Angeles restaurant in August 1959.14
    13 Markham's 1989 testimony was elicited in a California
    state-court action he brought against Milton Bradley and the Link
    partners in a dispute over foreign royalties. The case settled,
    with Markham receiving an increased royalty percentage on overseas
    sales.
    14 The record also includes Chambers' testimony that some
    parts of the "final" prototype game board -- including the spinner,
    mountains, and "circuitous track" -- were constructed in plastic
    by outside contractors based on the models created in-house in
    paper, cardboard, or wood. She did not say whether she attached
    the plastic versions of those items to the board.          Israel's
    testimony about how the prototype was constructed also left room
    for interpretation. At one point, he testified that he had primary
    responsibility for the box cover, Sue Markham had primary
    responsibility for the rules, and Chambers "[a]ssembled the things
    in the proper place and with the proper kind of wording and colors
    . . . on the final board."         Following up on re-cross, the
    plaintiffs' attorney noted that Israel had described "the process
    where you took the thumbnail sketches and then put it on the final
    board," and "[e]ach time you've said we put it on the board." The
    attorney then asked: "Who are you referring to when you say we?"
    Israel answered:
    I guess I always thought of the team who was
    working on The Game of Life, and I just
    referred to the group as we because I did some
    of it, Grace did some of it, Bill did some of
    it, Reuben did his part.     So everybody was
    working on this at different times and you
    - 19 -
    Given its holding that the prototype was a work for hire
    created for Klamer, the court did not need to delve into the
    details relevant to the alternative theory that it was a work for
    hire created for Markham by Chambers and Israel.15          Indeed, the
    district   court's   choice   not   to   reinforce   its   work-for-hire
    conclusion based on this alternative theory may indicate that it
    viewed the record evidence as more complex than the defendants
    acknowledge.16   Although Hasbro blames the plaintiffs for any such
    never just isolated it and had no input from
    everyone else.
    15 Hasbro intimates that Markham's claim to authorship could
    have succeeded only if he "alone, physically created every
    copyrightable aspect of the Prototype," but it provides no citation
    for that principle of law.     (Emphasis omitted.)   We decline to
    delve sua sponte into the intricacies of copyright law with respect
    to a work that may have been created in part by employees of an
    employer who also himself created elements of the work. No party
    in this case has suggested formal joint authorship by Markham,
    Chambers, and Israel, and we note the issue only because Hasbro's
    assertion appears to disregard the concept of a joint work that is
    explicitly recognized by the 1976 Copyright Act. See generally
    Reid, 
    490 U.S. at 753
     (observing that the organization that hired
    an independent contractor to sculpt a statue may be a joint author
    with the artist if the artist and the organization, which provided
    some elements of the finished piece, "prepared the work 'with the
    intention that their contributions be merged into inseparable or
    interdependent parts of a unitary whole.'" (quoting 
    17 U.S.C. § 101
    )).
    16The district court suggested as much during the hearing on
    the Plaintiffs' Motion to Amend Findings of Fact and Conclusions
    of Law. The court wondered whether it should "write up something"
    to explain its view of the parties' post-judgment arguments. The
    court recognized, however, that it would then need to deal with a
    host of other arguments -- "all those things that I didn't deal
    with because I didn't have to."
    - 20 -
    lack of clarity, the record is not so straightforward that we can
    say the district court erred in finding that the Markham parties
    "did not purposefully obscure relevant evidence" or "make false
    assertions."     Markham Concepts, 
    2021 WL 5161772
    , at *3.        In any
    event, we are unwilling to reject the district court's evaluation
    of the plaintiffs' factual arguments based on a theory that was
    only lurking in the background.
    Nor do we see any critical flaw in the court's brief
    treatment of the motivation and deterrence factors. Giving authors
    the opportunity to negotiate a better deal is the rationale for
    the termination provision in the 1976 Copyright Act, and the
    district court appeared to construe the litigation to have such a
    purpose.   See 
    id. at *1
     (noting that plaintiffs would use a ruling
    in their favor "to renegotiate a royalty agreement they found
    lacking").
    The   Markham   parties,   meanwhile,   say   their   "primary
    motivation" was not in fact financial, but rather "to restore
    credit to Bill Markham as being the author of [T]he Game of Life."
    The plaintiffs insist that "[a]ny ability to renegotiate the
    applicable contracts would have focused on [the motivation to
    restore credit], not on increasing royalty rates."         In addition,
    the Markham parties say, they sought "to separate themselves from
    Klamer, who had long attempted to control all royalties associated
    with the [g]ame."    These nonmonetary purposes for the litigation
    - 21 -
    also are proper.   See Spooner, 
    644 F.3d at 69
     ("Copyright cases
    are a prime example of a situation in which obtaining non-monetary
    relief or establishing a principle may be worth considerably more
    than the damages recovered.").17
    As for deterrence, Klamer accuses the district court of
    ignoring that Markham and his successors-in-interest "have fought
    with Klamer over royalties and authorship of the [g]ame for nearly
    sixty years," and he asserts that "[t]here was no basis for the
    court to conclude that [p]laintiffs will stop without the deterrent
    of an attorneys' fee award." (Emphasis omitted.) To the contrary,
    we think it apparent why the district court found no need to deter
    these plaintiffs from further copyright litigation.   Having failed
    to prove that Bill Markham should be credited as the author of the
    prototype and was therefore entitled to termination rights, the
    plaintiffs now have no choice but to live with the agreement that
    Markham reached with Link in 1959 (as slightly modified in the
    17  We are by no means suggesting that the Markham parties
    lacked any financial motivation.       After Chambers and Israel
    testified, Hasbro offered to forego a claim for attorney's fees
    and costs in exchange for the plaintiffs' agreement to dismiss all
    claims against the company.    The Markham parties rejected that
    proposal with a counteroffer that included Hasbro's payment of "a
    substantial lump sum that properly recognizes Mr. Markham's long-
    overlooked contributions to the [g]ame to be paid out as the
    parties may negotiate." The other two elements of the counteroffer
    were non-financial: "assurances that Hasbro will acknowledge Bill
    Markham as the sole designer and creator of the [g]ame henceforth"
    and "a separate escrow agreement with the Markham [p]arties for
    the payment of all future royalties related to the [g]ame."
    - 22 -
    1980s).18          No   court   would     look     favorably       on   new    litigation
    challenging that arrangement, and the outcome of this case on the
    merits      thus    provides       adequate       deterrence       against     plaintiffs
    pursuing any such action.
    In addition, despite the high costs of this litigation,
    see supra notes 6-7, the district court at no point suggested that
    it    believed      plaintiffs      had    "litigat[ed]       in    a   manner    greatly
    disproportional         to   the    matter    at    stake"     such     that    the    case
    warranted a fee award to deter other plaintiffs from adopting
    similar "trial strategies."               T-Peg, Inc., 
    669 F.3d at 62
    ; see also
    Kirtsaeng, 579 U.S. at 209 (noting that "a court may order fee-
    shifting       . . . to      deter      . . . overaggressive            assertions      of
    copyright claims, . . . even if the losing position was reasonable
    in a particular case").            We cannot say the court erred by failing
    to conclude that similarly ambitious copyright claims should be
    deterred by fee-shifting in this case.                    See T-Peg, 
    669 F.3d at
    62
    n.4 (observing that "the district court was in the best position
    to    assess    the     reasonableness       of    [the    plaintiff's]        litigation
    tactics"); Markham Concepts, 
    2021 WL 5161772
    , at *4 (stating that
    the    court    was     unconvinced       that    "an     award    [would]     serve   any
    meaningful deterrence effect").
    The finality of their copyright claim became indisputable
    18
    with the denial of their request for Supreme Court review of our
    decision on the merits.    See Markham Concepts, Inc. v. Hasbro,
    Inc., 
    142 S. Ct. 1414 (2022)
    .
    - 23 -
    Also, like the district court, we find unpersuasive
    Klamer's argument that he is entitled to greater consideration for
    fees, as an equitable matter of compensation, because he "proceeded
    through the litigation as a single individual, and one in frail
    health."   Markham Concepts, 
    2021 WL 5161772
    , at *4 n.11.         Without
    elaboration,   the   district   court    noted   that   "[o]n   balance,"
    Klamer's circumstances "do[] not weigh heavily enough in favor of
    an award." 
    Id.
     The substantial overlap between Klamer's arguments
    and those of    the other defendants       -- particularly Hasbro      --
    suggests that Klamer could have relied primarily on the toy company
    and its resources to defend against the Markham parties' claims.
    Hence, the district court reasonably could have questioned the
    need for so much redundancy, at great cost.        Whether that reason
    or some other concern influenced the court, we fail to see error
    in its conclusion that, as a matter of equity, the compensation
    factor did not weigh in favor of shifting Klamer's legal fees to
    the Markham parties.
    Nor do we find reason to second-guess the district
    court's denial of fees to Hasbro on the ground -- urged by Hasbro
    at oral argument -- that the court did not expressly consider the
    need for compensating the company.       Given the court's assessment
    of the other factors, we think it apparent that the court found no
    reason to compensate Hasbro for its defense of the case.              See
    generally Airframe Sys., 
    658 F.3d at 108
     (noting that "litigants
    - 24 -
    customarily bear responsibility for their own legal fees").
    In sum, we find no abuse of discretion in the district
    court's discretionary judgment against shifting the defendants'
    trial-level legal fees to the plaintiffs.19
    C. The Motions for Appellate Fees
    Our analysis in concluding that the district court did
    not abuse its discretion in rejecting Hasbro's and Klamer's trial-
    level fee requests also provides some support for the Markham
    parties' contention that we should likewise deny the requests for
    appellate legal fees.       Most of the factors discussed above play
    out   similarly    with   respect    to   the   appeal,    most      notably    the
    reasonableness of plaintiffs' argument that Reid discredited the
    instance and expense test for identifying a work for hire under
    the 1909 Copyright Act.        Indeed, that legal argument was more
    reasonably made to our court than to the district court, which
    would have been on shakier ground to disregard Forward's use of
    the instance and expense test post-Reid.
    We cannot characterize as objectively unreasonable the
    Markham parties' attempt to persuade our panel that we should not
    feel bound by Forward because, in Forward, Reid's impact on the
    instance   and    expense   test    was   not   raised    by   the    parties    or
    19We note that the district court awarded the defendants
    their costs pursuant to Federal Rule of Civil Procedure 54(d)(1),
    amounting to $10,256.45 for Hasbro and $38,953.81 for Klamer.
    - 25 -
    considered by the panel.       Given the lack of attention to the issue
    in Forward, we think it was not beyond reason for the Markham
    parties to have argued that the case was vulnerable precedent.              In
    addition,    our    analysis   did    not     treat   their   Reid   argument
    dismissively.      To the contrary, we expressed our disagreement in
    qualified terms, noting that "we are skeptical that the Supreme
    Court     . . . casually   and implicitly       did    away   with   a   well-
    established test under a different Act." Markham Concepts, 1 F.4th
    at 83 (emphasis added).20
    On the other hand, the Markham parties face a higher
    hurdle with respect to the factual reasonableness of their appeal
    challenging the district court's finding that The Game of Life
    prototype was a work for hire for Klamer.             As noted in our merits
    opinion, their two arguments against finding the prototype to be
    a work for hire under the instance and expense test "rais[ed] fact-
    intensive mixed questions, which we review with some deference to
    20Notably, in justifying the substantial amount of attorney's
    fees it sought for the proceedings in district court, Hasbro
    asserted that the Markham parties' "claim implicated areas of
    copyright law with limited precedent, and raised esoteric
    questions regarding the 1909 Act and its relationship to
    termination rights and the work-for-hire doctrine."      Defendant
    Hasbro, Inc.'s Motion for Attorney's Fees and Costs at 26, Markham
    Concepts, Inc. v. Hasbro, Inc., No. 1:15-cv-00419-WES-PAS (D.R.I.
    Nov. 5, 2019).    Consistent with that depiction of the claim,
    neither the district court nor our court -- as we have
    described -- approached the questions it triggered as obvious or
    inconsequential.
    - 26 -
    the district court."    Id.21    The standard of review thus posed a
    barrier to a different outcome on appeal.          Nonetheless, we are
    unpersuaded that the plaintiffs' appellate contentions were beyond
    the bounds of reasonableness.      As noted above, we recognized as a
    "closer question" whether the record sufficiently rebutted the
    work-for-hire   presumption     that   arises   from   the   instance   and
    expense test.   Id. at 85.      That presumption question required us
    to construe the 1959 Assignment Agreement, a task that was properly
    performed by us de novo because it did not require consideration
    of witness demeanor or credibility.       Importantly, in interpreting
    the written document, we did not reject the Markham parties'
    argument out-of-hand.   Rather, we closely considered the contract
    language before agreeing with the district court that the language
    "is best read" adversely to the Markham parties' position and,
    hence, that "[t]he district court . . . supportably found that the
    assignment agreement did not overcome the presumption that the
    game was a work for hire made for Klamer."         Id. at 85, 86.       Our
    careful analysis belies any intimation that the argument was
    frivolous or objectively unreasonable.
    We also reject the defendants' assertions that we should
    deem the appeal objectively unreasonable based on the strength of
    21 The arguments to which we referred were the prototype's
    failure to satisfy the expense prong of the test and the assignment
    agreement's supposed rebuttal of the presumption created by the
    test. See Markham Concepts, 1 F.4th at 83-85.
    - 27 -
    their alternative work-for-hire theory.         Hasbro and Klamer insist
    that, even if the Markham parties did not unreasonably ask us to
    reverse the district court's finding that the prototype was a work
    for hire for Klamer, their appeal was unreasonably pursued because
    the facts unequivocally show that it was a work for hire by
    Markham's employees for him.      For the reasons discussed above, we
    do not view the evidence on the roles played by Markham, Chambers,
    and Israel to be so clearly decisive that we can conclude that the
    appeal was objectively unreasonable on that basis, particularly in
    the absence of pertinent factfinding by the district court.            If we
    had concluded that the prototype was not a work for hire for
    Klamer, the proper course would have been to remand the case to
    the district court for factfinding on the remaining theories and
    issues.
    Moreover,    the   Markham    parties'   attorney   told     the
    district court that even a finding that the game was a work for
    hire for Markham, rather than Klamer, would be beneficial to the
    plaintiffs because -- though no termination rights would exist --
    Markham's legacy would be preserved as "the author, the true
    creator of the [g]ame."        The plaintiffs continue to press that
    perspective in their opposition to the appellate fees motions,
    insisting that "a declaration that Bill Markham was the author of
    [T]he Game of Life," even in a work-for-hire context, "would have
    been   a   significant   victory."       The   potential   impact   of   the
    - 28 -
    alternative work-for-hire theory on plaintiffs' case thus remains
    debatable and, for that reason as well, the theory does not provide
    a   basis       for        deeming     the     plaintiffs'       appeal           factually
    unreasonable.22
    Hence, the Fogerty unreasonableness factor that is due
    "substantial weight," Kirtsaeng, 579 U.S. at 210, does not favor
    imposing responsibility for the defendants' attorney's fees on the
    plaintiffs.           As     the   district     court    observed,      "unpersuasive
    arguments      are     not    necessarily       unreasonable         ones."         Markham
    Concepts, 
    2021 WL 5161772
    , at *4.                    Nor are there circumstances
    that lean sufficiently in the other direction to persuade us that
    fee-shifting is appropriate.                  As a general matter, this was a
    multi-layered case that ultimately served Hasbro's and Klamer's
    interests by permanently settling the authorship question and
    ending    decades      of     dispute    over       Markham's    role       and   possible
    copyright rights.             Their robust advocacy no doubt reflects the
    value     of   that    stability.            With   respect     to    the     plaintiffs'
    motivation,       we       reiterate     that        renegotiating          the    royalty
    arrangement and establishing Markham as the prototype's author
    22The plaintiffs also argued to the district court that "the
    theory of Markham being the employer" was introduced too late and
    should not have "been allowed in the case."         In our merits
    decision, we noted the absence of any apparent prejudice from the
    district court's failure to strike that alternative theory because
    it had not been adopted by either the district court or us. See
    Markham Concepts, 1 F.4th at 86.
    - 29 -
    were    permissible,   plausible   objectives.      The   record   contains
    descriptions by Klamer of Markham's contributions that support the
    plaintiffs' stated objective to highlight and cement Markham's
    role in producing the prototype, which was the copyrightable
    "work[]."    
    17 U.S.C. § 102
    (a).     Among these were Klamer's comment
    that Markham had "c[o]me up with" a "topnotch" product at Klamer's
    request and Klamer's description of Markham in a 1997 letter to
    Hasbro as his "co-inventor . . . who reduced my ideas to practice
    in the concrete form of a 3-[d]imensional prototype."
    In   our   view,   Klamer's     and   Hasbro's    arguments   on
    motivation -- depicting the copyright claim as improperly driven
    solely by greed or animosity toward Klamer -- are way off the mark.
    There is nothing sinister about a financial motive.             As we have
    explained, the very purpose of the statutory termination right is
    to enable an author to renegotiate the terms -- financial and
    otherwise -- of an early assignment of rights.         Klamer and Hasbro,
    however, appear to question the legitimacy of that objective for
    these    plaintiffs.     Klamer    points    to   Markham's    late-in-life
    marriage to his widow, and Hasbro notes that "Markham's widow and
    her daughter attempted to use [§ 304(c)] to create leverage to
    renegotiate an already lucrative deal             -- one that paid them
    handsomely for having played no role in the creation of the
    [g]ame."    In pressing the argument that the case as litigated was
    an unjustified "play for more money," Hasbro and Klamer point out
    - 30 -
    that the original trigger for the lawsuit -- the lapse in the
    royalty payments due to Markhams' successors-in-interest -- was
    quickly resolved by the district court.   That resolution, however,
    does not negate the plausibility of the plaintiffs' stated desires
    to establish Bill Markham's legacy and obtain a method for receipt
    of royalty payments independent of Klamer.
    Despite the Markham parties' lack of success in the
    litigation, we fail to see how the objectives of the 1976 Copyright
    Act would be advanced by compensating Hasbro at the plaintiffs'
    expense.   To the contrary, a "co-inventor's" action to clarify and
    settle authorship and intellectual property rights -- so long as
    the claim is not objectively unreasonable on the facts or the law
    -- is in keeping with the Act's purpose to "encourag[e] and
    reward[] authors' creations."    Kirtsaeng, 579 U.S. at 204.   It may
    be true, as Hasbro emphasizes, that Markham and his heirs "have
    made millions of dollars" from the deal that Markham and Klamer
    negotiated in 1959, but Link's agreement with Milton Bradley for
    a six percent royalty left the game company with the bulk of the
    proceeds from The Game of Life.     Moreover, somewhat at odds with
    Hasbro's insistence (echoed by Klamer) that Markham improved upon
    his "generous deal" multiple times, the record in fact indicates
    that Markham and Link received a reduced percentage of the game's
    - 31 -
    royalties on international sales starting in 1964.23
    We likewise do not view the compensation factor to favor
    Klamer, having the same perspective toward attorney's fees on
    appeal that we noted with respect to his claim for reimbursement
    in the trial court. Given the substantial overlap in the arguments
    presented to us by Klamer and Hasbro, it would appear that Klamer
    had an opportunity to rely on Hasbro and its greater resources to
    finance the appeal and avoid duplicative expenses.     Hence, we do
    not see the compensation factor weighing in favor of imposing
    Klamer's appellate litigation costs on the Markham parties.24
    Finally, consistent with our discussion of the trial-
    23 At Milton Bradley's request, Markham and Link agreed in
    1963 to reduce the royalties on overseas sales because the higher
    royalty requirement was presenting a barrier to such sales. Link's
    percentage was decreased from six percent to three percent.
    Markham's share of that reduced royalty relative to Link's was
    higher -- fifty percent rather than thirty percent -- but his
    percentage of the total royalties on non-domestic sales dropped
    from 1.8 percent to 1.5 percent. Subsequently, in the settlement
    of the California state-law litigation, Markham was given 36.66
    percent of the then-current 4.5 percent royalty on international
    sales that Milton Bradley was paying to Link (roughly 1.65 percent
    of total royalties). We recognize, of course, that the reduced
    royalty percentage may have been offset by increased overseas
    sales.
    24We note that Klamer was a principal in Link Research, the
    entity that contracted with Milton Bradley to license The Game of
    Life and that received the majority of the royalties that Milton
    Bradley paid under that contract -- seemingly placing Klamer in an
    advantageous position relative to Markham vis-a-vis the game's
    financial rewards. The record indicates that Klamer was entitled
    to fifty percent of Link's value when the company was dissolved in
    1968.
    - 32 -
    level fees, we do not believe a fee award for the appellate-level
    proceedings   would   serve   a   deterrence   objective,   either   with
    respect to the plaintiffs in this case or others.      See, e.g., Shame
    on You Prods., Inc. v. Banks, No. CV 14-03512-MMM, 
    2016 WL 5929245
    ,
    at *10 (C.D. Cal. Aug. 15, 2016) (noting that courts consider both
    "specific deterrence," focusing on the parties in the case, and
    "general deterrence," focusing on the potential effect on future
    litigants).   The plaintiffs' losses at the trial, appellate, and
    Supreme Court levels should be adequate deterrence to further
    litigation concerning authorship of The Game of Life and the
    associated copyright rights.      Nor do we think an award of fees to
    Hasbro and Klamer would advance the purpose of the Copyright Act
    by deterring others from filing ill-advised actions or litigating
    reasonable ones excessively.       As our discussion indicates, we do
    not view this case in that light.
    Hence, we follow the lead of the district court and leave
    to each party the burden of their own legal fees.      Accordingly, we
    affirm the decision of the district court denying Hasbro's and
    Klamer's trial-level fee requests pursuant to 
    17 U.S.C. § 505
     and
    deny their motions for appellate fees.
    So ordered.    Each party to bear its own costs.
    - 33 -