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Subject: You think you know who owns the Rights to TwixT? You are Probably Wrong…. rss

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Wayne Dolezal
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I have spent over a year researching the ownership of TwixT and who, or what entity, owns the game. I want you to read this with a critical eye as I prove that the Internet is wrong about the ownership of TwixT, and through public records tell the actual story and history of the game so many of us have enjoyed. I will also provide an answer as to why, after over two decades of solid success, TwixT was unavailable in America for so many years. I want to thank my lawyer, Zachary Strebeck, one of the best board game lawyers in the country (and frequent contributor on Board Game Geek), for his help with this endeavor.

By the end of this posting, I will provide the answers to the following questions:
1. What is meant by “rights” to a board game?
2. Who owned the rights to TwixT and at what point in history?
3. If it is true that Alex Randolph bought the rights back to his board game from Avalon Hill in the 1970s, why was it never published again in the United States? What were the rights he could possibly have obtained?
4. Who is the sole owner of TwixT presently?

1. What is meant by “rights” to a board game?
In America, and throughout many countries in the world, a creator can have 3 types of rights:
1. Patent – This is protecting some unique design of a creation. Patents typically expire after 20 years. Even if TwixT had a patent for its unique design, it has long since expired.
2. Copyright – While most people think of this as protection for a book author, this also applies to board games. There was a famous case in the early 1980s where a board game designer copied some aspects of Monopoly (calling it “Anti-opoly”). The case reached the Supreme Court and was later thrown out. This is actually why there are so many “opoly” versions of Monopoly.

An author would register his creation with the United States Copyright Office. Depending on when it was registered, the copyright could enjoy in some cases over 100 years of protection. In the case of TwixT, the 3M Corporation registered the copyright of the game on November 9, 1962. This appears in something called the “Catalog of Copyright Entries” found here:
https://books.google.com/books?id=RhwhAQAAIAAJ&printsec=fron...



If you are having a hard time making this link work, try to find “Catalog of Copyright Entries 1963: January – June”. Do a search for “TwixT”, and you will also find entries for other 3M Bookshelf game like “Oh-Wah-Ree”(another Alex Randolph creation and “Phlounder”).

Copyright laws for things published prior to 1964 required something called a “Manual Renewal” on the 28th year of copyright. This means that anytime during the 28th year of Original Copyright, the company that filed for the original copyright must file again with the Copyright office. Cornell University assembled a handy guide to determine this:

http://copyright.cornell.edu/resources/publicdomain.cfm

If the copyright WAS renewed, TwixT would be fully protected for a total of 95 years. But it was never renewed. On January 1, 1991, TwixT actually entered into Public Domain, which means anyone can freely copy the game, unless some other right was infringed on (see #3 below).

We have all heard stories about Alex Randolph buying the rights from Avalon Hill in the mid-70s. I don’t know if it is true but if it was true, and he did buy the copyrights, he made a common oversight by neglecting to renew his copyright with the United States Government. The copyright office did a study and found that only 15% of copyrights prior to 1964 were actually renewed.

Everyone thinks Alex owned his copyright (Alex may have even thought so). He may have made a deal with 3M and later Avalon Hill for x% of the proceeds, but according to the Unites States Copyright Office, it was 3M who actually legally owned it, and that record was never amended to reflect any transition of copyright. Avalon Hill has Copyright 1976 on their boxes, but that is not actually extending the original copyright date, which is 1962.


3. Trademarks – I could bottle a sugary water concoction and call it what I want, as long as I do not call it “Coca-Cola”. Coca-Cola owns the rights to that product through its trademark of the word “Coca-Cola” for beverages. The United States Patent and Trademark Office processes official Trademark applications to ensure that companies do not infringe on other companies’ intellectual rights, if their products are similar. If a company is granted a Trademark, they must protect it. Just as “Apple Computers” can co-exist with a laundry company called “Apple Cleaners”, the Trademark protects the category in which the product exists. For example, TwixT board game can exist, as well as Twixt watch synchronizer (I used that as an example because there’s some application called ‘Twixt’ that ensures your watch is synchronized. I’m not really sure of the demand for it, but it exists somewhere….). The boardgame TwixT was trademarked for many years by a few companies. We’ll get to that in the next section….

2. Who owned the rights to TwixT and at what point in history?
I have read dozens of articles about TwixT, and all of them seem to have copied a line directly from the Wikipedia page regarding ownership of TwixT:

“Michael Katz, his nephew, owns the rights to Twixt since the death of Alex's widow, Gertrude Randolph.[citation needed] “

Notice even on the Wikipedia page, there’s a “citation needed” link which asks for proof of TwixT’s ownership.

What is telling about this Wikipedia page is that the sentence immediately before this reads:

“The game is no longer produced in the United States, but a succession of German companies has produced the game since the 1970s under license from Avalon.”

So which is it? Does Avalon Hill own the rights, or does the nephew?

The final piece of this “rights” puzzle involves Trademarks. One could manufacture an identical TwixT board and instructions (because those are in public domain), and could call it TwixT, as long as they own the Trademark. If they did not own the trademark, they could still copy the original game but call it “Fences and Posts” or whatever. Trademarks are extremely important and help us understand the actual history of TwixT, as well as other companies who were going to produce TwixT, but decided not to publish it.

The final public record I will bore you with is on the United States Patent and Trademark’s TESS Database search. This lists all Trademark applications that have been applied for, and what their status is. A Trademark is either “Live”, which means it is currently protected, or “Dead”, which means it was at one point protectable, but the Trademark owner did not renew the application when it was time to renew.

http://tmsearch.uspto.gov/bin/showfield?f=doc&state=4804:i4wgu9.2.16



(If this link does not work, go to uspto.gov. In the “Trademarks” section, click on “Search Trademark Database”, then click “Search Trademarks” under the Trademark Electronic Search System (TESS). Do a basic word mark search for “twixt”. The record I am talking about is the 16th down, #72163390)




You can clearly see that 3M Trademarked TwixT in February, 1963. It also has a cancellation date of February, 2005. If you click on the “ASSIGN” tab, you can see that the “rights” were transferred to Avalon Hill, and finally to Hasbro.



What this means is Hasbro was the final Trademark owner, up until and after Alex’s death in 2004. For whatever reason, they decided not to renew the Trademark, which meant that anyone else could use it after this time, as long as another company waited at least a year to register it. Almost exactly a year after the Hasbro trademark expired, WINNING MOVES filed a trademark!

http://tmsearch.uspto.gov/bin/showfield?f=doc&state=4802:7x9ld1.2.7

For those where the link does not work, follow my previous instructions above, but this is the 7th record down, #78818721



For those that do not know, WINNING MOVES was co-founded by Alex Randolph in the 1990s. I find it EXTREMELY interesting that his old company was set to revive TwixT (they, after all, could not publish it until Hasbro relinquished rights). From February 2006 through the cancellation of this trademark, November, 2007, WINNING MOVES was going to publish it. I have a guess as to why they did not, however. They might have been convinced that Alex made a deal with Avalon Hill, and now the rights are owned by someone else and in order to publish it a royalty must be paid, etc. etc. But as we have seen, when an individual makes a deal with a company (as Alex perhaps did in the 1970s with Avalon Hill), it MUST be reported and the Trademark must be re-assigned officially through the proper US Government channels. WINNING MOVES probably did not realize that they could have published TwixT without paying a red cent in royalty payments to people claiming to own the rights at this time.


3. If it is true that Alex Randolph bought the rights back to his board game from Avalon Hill in the 1970s, why was it never published again in the United States? What were the rights he could possibly have obtained?
This is an interesting question. The short answer is “I don’t know”, but based on the information I have provided you, I will make an educated guess. If an event took place in the 1970s whereby Alex “bought the rights back” to his game, it was never reported to anybody within the US Intellectual Property offices (copyright & trademark). I’m not even sure what “rights” he thought he was buying back. Avalon Hill and Hasbro clearly owned the Trademark until 2005. This does explain why he was never able to sell it in America after he “bought the rights back”. He couldn’t publish it, or Avalon Hill/Hasbro would have every right to sue him. What reasonably could have happened is he paid them money to NOT publish it. So they didn’t….but neither could HE. It is surely an interesting tale in the history of TwixT, and one for which I wish I knew what Alex thought he was buying….

4. Who is the sole owner of TwixT presently?

The TwixT trademark has been dead since 2007. The copyright was dead 26 years ago. These two events combined means technically ANYONE could have produced the game over the past decade, and not need any permissions or licenses or anything like that.

This is why it has taken me a year to announce that I am the exclusive owner of the rights to produce TwixT.







I filed a trademark application in January. The way that process works is my intent to register was published in the USPTO Gazette in June. Anyone who believes they own the Trademark could protest within a 30 day window. The only legitimate protests would have come from Hasbro/Avalon Hill or 3M, as they were former owners of that trademark. Anyone else would not have any ground to stand on, as TwixT is not presently in production in the United States. The opposition period ended about 2 weeks ago without issue, which means that in the eyes of the United States Government, I am the legitimate owner of TwixT. I will receive my official certificate probably in October/November, which will allow me to advertise TwixT with the “Registered” symbol next to it. Before it “Officially” registers, I can only use a TM sign. The Trademark process takes waaaaay too long in my opinion….

For those still reading with a skeptical eye, you may think that I do not deserve to own the rights to TwixT. I did not invent it. But neither did anyone else who is living. I have never posted on BGG before, and you may think I have only a monetary interest and don’t care about the game at all. I grew up with TwixT and was disappointed last summer that I couldn’t find a new copy for my nephew’s birthday. The truth is, I would not have spent so much time and money researching this game if Alex were alive, or if the product was readily available as a new product on store shelves. Alex has been gone for over 13 years now, and there has been no forward progress on TwixT. Is it ideal that his family would own the rights? Yes, and they absolutely could have if they had followed proper protocol to secure those rights. They’ve had over a decade to do so.

I made Alex’s nephew, Michael Katz, aware of my intentions last week. He was not happy, understandably so. Would you be happy if some stranger came along and took something that you mistakenly believed was yours? I’m incredibly sensitive to what the Katz family might be feeling now, and they have every right to dislike me or the plan for TwixT. I want to be able to put Alex’s name on the box and credit him with the game, but if his family has an issue with it, I won’t put his name on the box.

I am very excited about the future of TwixT, and I will announce in the coming days (tomorrow or Monday) the plan to breathe new life into the game we all love so much and to ensure that the only un-published game listed in the GAMES MAGAZINE Hall of Fame is back for future generations. I will need you guys’ help! Alex Randolph so loved this game, and I want to honor his work in the most appropriate way possible.

I will talk to you soon and have a great weekend.

-Wayne Dolezal
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TPoG
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ISBN: 1-85723-146-5
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Well, indeed a surprising story...

Would like to be able to buy the game finally. Been thinking of getting a second hand 3M copy for some time.

Edited for typo.
 
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Lee Massey
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it's 3M!
 
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JackFlash wrote:
it's 3M!

Thanks. Indeed. blush
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Dave Dyer
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An interesting story to be sure. If I followed the thread
correctly, all you claim to own is the name Twixt. Anyone
else can still publish a clone and call it "Fences and Posts"
or whatever.

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Dr Neau
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So assuming you make it, make the pieces so that the little top posts are a bit higher and can hold more arms off of them.
 
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Wayne Dolezal
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Dave,
Yes you are correct. Since 1991, TwixT has been in the public domain, so anyone is free to use every board and piece design of the original 3M version. Until 2005, you couldn't call it TwixT, as Avalon Hill/Hasbro had the exclusive right to the name. If someone were to name the games "fences and posts", it would not be a bad thing. I think the mechanics of TwixT is timeless and should be made widely available.

"Snakes and Ladders" is a great example of how a product in public domain (like TwixT) was commercialized and sold as "Chutes and Ladders". Anyone can come up with the same mechanism (slides, ladders) and market it under any name. Just don't call it "Chutes and ladders" as it would infringe upon Hasbro.
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drneau wrote:
So assuming you make it, make the pieces so that the little top posts are a bit higher and can hold more arms off of them.

Alas and alackday, the injection mold equipment has already been purchased. If I had been involved sooner, I would have advocated for a different design altogether.
 
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Derry Salewski
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What's twixt?
 
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scifiantihero wrote:
What's twixt?

It's that candy bar made from caramel and chocolate on a cookie center.
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JosefK wrote:
scifiantihero wrote:
What's twixt?

It's that candy bar made from caramel and chocolate on a cookie center.


I wish this guy was announcing that he bought nutrageous trademarks and was gonna make those more available
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Dr Neau
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scifiantihero wrote:
JosefK wrote:
scifiantihero wrote:
What's twixt?

It's that candy bar made from caramel and chocolate on a cookie center.


I wish this guy was announcing that he bought nutrageous trademarks and was gonna make those more available


Or Marathon bars
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drneau wrote:
scifiantihero wrote:
JosefK wrote:
scifiantihero wrote:
What's twixt?

It's that candy bar made from caramel and chocolate on a cookie center.


I wish this guy was announcing that he bought nutrageous trademarks and was gonna make those more available


Or Marathon bars


Marathon Bars were the greatest!
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Payday is the way to go!!
 
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JackFlash wrote:
Payday is the way to go!!


The game or the candy bar?
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μῆνιν ἄειδε θεὰ Πηληϊάδεω Ἀχιλῆος/ οὐλομένην, ἣ μυρί᾽ Ἀχαιοῖς ἄλγε᾽ ἔθηκε,/...
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chrisscott wrote:
JackFlash wrote:
Payday is the way to go!!


The game or the candy bar?



The candy bar was great. I last saw it before I kept kosher though but it might be kosher.

The game was a mass market thing but I did like it as a boy.
 
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Christian Beiersdorf
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Re: You think you know who owns the Rights to TwixT? We will see who is wrong!
I am amazed at how uncritically the subject of copyright is discussed here - in the face of the wild claims of Wayne Dolezal. This guy may have the trade mark of TWIXT - however, not the rights of the game content.

Wikipedia gives – irrespective of the legal clarification required – some rather clear definition:

"Duration of copyright
Copyright protection generally lasts for 70 years after the death of the author. If the work was a "work for hire", then copyright persists for 120 years after creation or 95 years after publication, whichever is shorter. For works created before 1978, the copyright duration rules are complicated. However, works created before 1923 have made their way into the public domain.
Expansion of U.S. copyright term (assuming authors create their works at age 35 and live for seventy years)
Works created before 1978
For works published or registered before 1978, the maximum copyright duration is 95 years from the date of publication, if copyright was renewed during the 28th year following publication.[36] Copyright renewal has been automatic since the Copyright Renewal Act of 1992.
> Effect of the 1992 amendment
The Copyright Renewal Act secures the second term for works copyrighted between January 1, 1964, and December 31, 1977, without a renewal registration requirement. This system is also referred to as an "opt-out" system because it provides for copyright protection even if it is not requested by the author of a work. However, if a copyright originally secured before January 1, 1964, was not renewed at the proper time, protection would have expired at the end of the 28th calendar year of the copyright.

For works created before 1978, but not published or registered before 1978, the standard §302 copyright duration also applies. Prior to 1978, works had to be published or registered to receive copyright protection. Upon the effective date of the 1976 Copyright Act (which was January 1, 1978) this requirement was removed and these unpublished, unregistered works received protection. However, Congress intended to provide an incentive for these authors to publish their unpublished works. To provide that incentive, these works, if published before 2003, would not have their protection expire before 2048."


TWIXT has been invented 1957. So, to renew the protection was not necessary from my point of view and it remains the impression of piracy and an announced act of plagiarism. My heart and my support is with Michael Katz!
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Dr Neau
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Well, not really so much on the copyright thing...

https://boardgamegeek.com/thread/493249/mythbusting-game-des...
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Wayne Dolezal
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Christian,
I get why you are upset. I do. I can't change that. But I would like some clarification on why you believe protection is not necessary for a game created in 1957? The copyright was issued in 1962 to 3M, not Alex Randolph (though yes, it is widely known he invented it).

Quoting your passage....
This statement: "Copyright protection generally lasts for 70 years after the death of the author. If the work was a "work for hire", then copyright persists for 120 years after creation or 95 years after publication, whichever is shorter" only applies to anything originally copyrighted after 1978, because "For works created before 1978, the copyright duration rules are complicated"


"However, if a copyright originally secured before January 1, 1964, was not renewed at the proper time, protection would have expired at the end of the 28th calendar year of the copyright." TwixT was copyrighted in 1962, and would have to have been manually renewed in 1990. Avalon Hill presumably could have cared less, because it was out of circulation. Alex Randolph presumably did not know this law and believed he and his heirs owned TwixT in perpetuity.

So I do not see this as plagarism, as the game is indeed a public domain item. I understand why people might feel it is plagarism. Is it legal? Yes. Is it ethical? That's a question I cannot answer because to some it is, and to some I have committed a crime one rung up from a Hate crime.


You have to ask yourself the question "What forward progress has TwixT made in the past 2 decades? Does it deserve to? Or should TwixT die with its creator and heirs? Or is TwixT so great that every generation should be able to play it?"

Wayne

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Jeffrey Allers
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Lilcerebral wrote:

you may think I have only a monetary interest and don’t care about the game at all. I grew up with TwixT and was disappointed last summer that I couldn’t find a new copy for my nephew’s birthday. The truth is, I would not have spent so much time and money researching this game if Alex were alive, or if the product was readily available as a new product on store shelves. Alex has been gone for over 13 years now, and there has been no forward progress on TwixT. Is it ideal that his family would own the rights? Yes, and they absolutely could have if they had followed proper protocol to secure those rights. They’ve had over a decade to do so.

I made Alex’s nephew, Michael Katz, aware of my intentions last week.


You claim that your true motivation is just to make sure such a great game is available again...

...but, you didn't contact Alex Randolph's heirs and help make sure they still have the rights (what you say would actually be "ideal") and work with them to publish a new version. Instead, you kept your intentions secret until it was too late for them to do anything about it? And you'd like to use Randolph's name but don't feel the need to pay royalties for it?

Those are not the actions of a saint. More like an unscrupulous businessman.shake
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Wayne Dolezal
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Jeffrey,
Thank you. You make great points. I am not a saint, never claimed to be. Yes, I want to bring back TwixT, for many reasons. And of course one of them is because I think my financial risk in doing the research, creating a prototype, legal fees, marketing will pay off eventually. To be fair I said "you may think I have only a monetary interest". I do like the game, and think that it has earned a place in history and it should be brought back. I don't know what the demand will be but there is surely at least one person a day on Amazon that think "I want to buy TwixT for my grandchild".

The ideal situation would be if TwixT were around as an action of the heirs. It's not. It hasn't been for 20 years. I don't know what help I could have been to them, as one would think that if you really wanted to sell a game, you would. I'm sure they have friends that have encouraged them, or even provided guidance, to do so. Why would they take advice or guidance from a random stranger? I don't know for a fact but I'm sure some of you guys have asked them or offered any sort of assistance to bring the game back. I'm not saying they wouldn't be open to licensing it, but therein lies the fun of really working to make something. There's no real work to earn a royalty check. Should one be entitled to a creator's royalty payments for the simple fact they are an heir? I'm split on that question. Shakespeare's heirs don't earn a dime. But maybe they should.

There are many options to make a game available including crowd sourcing. All of this takes effort and capital, and maybe they do not want to do that. Like I said in my post, Winning Moves was planning on making the game at some point. I would really like to know why they passed on the game, but I do have suspicions. If someone could PLEASE tell me that, I would amazingly appreciative.

There are a few reasons I could not say anything, as 3M and Hasbro could have magically woken up and say "whoa whoa whoa. Wait a minute! We want to bring it back". To your point, bringing any heirs into the equation could cause some headaches that I wanted to avoid. You are a game designer, so I'm sure you appreciate the points I made in the post about how necessary it is to protect intellectual property. This rights issue was going to happen eventually. Someone was going to say "why would such a popular game fade away?" I'm somehow the first person to do the research and figure it out, and that floors me as I have trouble with simple math.

When I brought the notion of putting Alex's name on the box, the absolute and only reason I did that is because that's something he wanted, and I felt it is something that the community wanted. That is allegedly the reason behind a deal he made with Avalon Hill in the 1970s, and why his name and face appears on the Kosmos version. The honest truth is... if that's what he wants then why not? If it is somehow insensitive for me to do so or if the community doesn't think it's a great idea, or if his family doesn't think it's a great idea, then so be it, I won't put his name on the box. Shakespeare's face is everywhere, and nobody pays royalties...

But all great points Jeffrey, and I understand why you feel the way you do. You probably think I'm a villain, and as long as you don't say I'm a fat bastard with balding grey hair, awful breath and a disposition to unnecessary flatulence, then it's all good.

Wayne
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Markus Hagenauer jr.
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Wayne,

I think Jeffrey is absolutely right.
The only correct way to bring back the game to the market is to license it from the current ownes (of the game, not the trademark), the heirs of Alex Randolph.
The fact that they didn´t publish the game themselves does not matter. I have several games designed by myselfe and I do not self-publish them. Do you realy think this would allow you to steal them?

As far as I can tell, the heires have usually been open to negotiations.
For example Franjos has licensed Mahe ( https://www.boardgamegeek.com/boardgameversion/240295/franjo... ) and also Bezier Games made an agreement with them, when they published thier variation of Ricochet Robots, Mutant Meeples.
And there are a lot of other games of Alex Randolph on the market
too, and I´m sure all the publishers (at least those located in a nation of law) pay royalties to the heires.

So in my opineion you have two options:
- form an agreement with the heires
- wait until the year 2074

I´d be glad if the first one would work, because I´d like to see the game back to the market too. But for sure I wouldn´t buy a game of a publisher, denying the rights of a game designer.

Markus
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Lilcerebral wrote:

Shakespeare's face is everywhere, and nobody pays royalties...
Wayne


I´m not a lawyer, but I´d say the rules are easy to understand even for a layman like me. The rights expire 70 years after the death of the author/designer/composer.

William Shakespeare 1616: 401 > 70
Giuseppe Verdi 1901: 116 > 70
H. P. Lovecraft: 1937: 80 > 70

J. R. R. Tolkien 1973: 44 < 70
Astrid Lindgren 2002: 15 < 70
Alex Randolph 2004: 13 < 70
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Martyn F
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Is there any reason not to negotiate with the heirs of Alex Randolph?
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Moshe Callen
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ἄνδρα μοι ἔννεπε, μοῦσα, πολύτροπον, ὃς μάλα πολλὰ/ πλάγχθη, ἐπεὶ Τροίης ἱερὸν πτολίεθρον ἔπερσεν./...
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μῆνιν ἄειδε θεὰ Πηληϊάδεω Ἀχιλῆος/ οὐλομένην, ἣ μυρί᾽ Ἀχαιοῖς ἄλγε᾽ ἔθηκε,/...
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I do not know the legalities. Perhaps though I could make a suggestion to the OP in the interests of good will. The OP's post says his motivation is to make the game available. Perhaps the OP could voluntarily sell the game keeping enough from the earnings to cover his costs and a percentage which is standard in the industry for a publisher of an established game but then donate the rest to the heirs of the inventor without this going to protracted litigation.
 
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