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Welcome to the Mock Trial Welcome to the Mock Trial Kickoff!Kickoff!

Are you ready?Are you ready?

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Electronic Arts IncElectronic Arts Inc. v.. v. KellerKeller(A California Supreme (A California Supreme Court Appeal) Court Appeal)

“Video games are entitled to the full protections of the First Amendment, because “[l]ike the protected books, plays,and movies that preceded them, video games communicate ideas—and even social messages—through many familiarliterary devices (such as characters, dialogue, plot, and music) and through features distinctive to the medium (such as the player’s interaction with the virtual world).”

http://cdn.ca9.uscourts.gov/datastore/opinions/2013/07/31/10-15387.pdf

“Such rights are not absolute, and states may recognize the right of publicity to a degree consistent with the First Amendment. Zacchini v. Scripps-

Howard Broad. Co., 433 U.S. 562, 574–75 (1977). In this case, we must balance the right of publicity of a former college football player against the asserted First Amendment right of a video game developer to use his likeness in its expressive works.”

http://cdn.ca9.uscourts.gov/datastore/opinions/2013/07/31/10-15387.pdf

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The HistoryThe History

Electronic Arts, Inc., = (EA)NCAA = National CollegiateAthletic Association (“NCAA”) football or basketball players

“Samuel Keller was the starting quarterback for ArizonaState University in 2005 before he transferred to theUniversity of Nebraska, where he played during the 2007 season.

Electronic Arts, Inc., (EA) is the producer of the NCAA Football series of video games, which allow users to control avatars representing college football players as those avatars participate in simulated games. In NCAA Football, Electronic Arts, Inc (EA) seeks to replicate each school’s entire team as accurately as possible.”

http://a.espncdn.com/photo/2006/0822/ncf_u_keller_275.jpg

“Electronic Arts game differs from reality in that EA omits theplayers’ names on their jerseys and assigns each player ahome town that is different from the actual player’s hometown. However, users of the video game may upload rostersof names obtained from third parties so that the names doappear on the jerseys. In such cases, EA allows images fromthe game containing athletes’ real names to be posted on itswebsite by users. Users can further alter reality by entering“Dynasty” mode, where the user assumes a head coach’sresponsibilities for a college program for up to thirty seasons,including recruiting players from a randomly generated poolof high school athletes, or “Campus Legend” mode, wherethe user controls a virtual player from high school throughcollege, making choices relating to practices, academics, andsocial life.”

http://cdn.ca9.uscourts.gov/datastore/opinions/2013/07/31/10-15387.pdf

“Objecting to this use of his likeness, Keller filed aputative class-action complaint in the Northern District ofCalifornia asserting, as relevant on appeal, that EA violatedhis right of publicity under California Civil Code § 3344 andCalifornia common law.2 EA moved to strike the complaintas a strategic lawsuit against public participation (“SLAPP”)under California’s anti-SLAPP statute, Cal. Civ. Proc. Code§ 425.16, and the district court denied the motion.”

http://cdn.ca9.uscourts.gov/datastore/opinions/2013/07/31/10-15387.pdf

“2 There are actually nine named plaintiffs, all former National CollegiateAthletic Association (“NCAA”) football or basketball players:

1. Keller, Edward O’Bannon, Jr. (UCLA) 2. Byron Bishop (University of North Carolina)3. Michael Anderson (University of Memphis) 4. Danny Wimprine (University of Memphis)5. Ishmael Thrower (Arizona State University)6. Craig Newsome (Arizona State University) 7. Damien Rhodes (Syracuse University)8. Samuel Jacobson (University of Minnesota)

EA’s NCAA basketball games are also implicated in this appeal. Because the issues are the same for each plaintiff, all of the claims are addressed through our discussion of Keller and NCAA Football.”

http://cdn.ca9.uscourts.gov/datastore/opinions/2013/07/31/10-15387.pdfNot exacting - Bulleted for emphasis.

“Finally, as a qualitative matter, the publicity rights ofcollege athletes are remarkably restricted. This considerationis critical because the “right to exploit commercially one’scelebrity is primarily an economic right.” Gionfriddo v.Major League Baseball, 114 Cal. Rptr. 2d 307, 318 (Cal. Ct.App. 2001). NCAA rules prohibit athletes from benefittingeconomically from any success on the field. NCAA Bylaw12.5 specifically prohibits commercial licensing of an NCAAathlete’s name or picture. NCAA, 2012–13 NCAA DivisionI Manual § 12.5.2.1 (2012). Before being allowed to competeeach year, all Division I NCAA athletes must sign a contractstating that they understand the prohibition on licensing andaffirming that they have not violated any amateurism rules.In short, even if an athlete wished to license his image to EA,the athlete could not do so without destroying amateur status.Thus, an individual college athlete’s right of publicity is extraordinarily circumscribed and, in practical reality, nonexistent.”

http://cdn.ca9.uscourts.gov/datastore/opinions/2013/07/31/10-15387.pdf

http://www.usatoday.com/story/sports/ncaaf/2013/08/19/ea-sports-lawsuit-sam-keller-supreme-court-ncaa/2675019/

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Questions Before This Questions Before This CourtCourt

Questions before this Questions before this court:court:

1.1. Did EA violate Keller’s right of publicity under California Did EA violate Keller’s right of publicity under California Civil Code § 3344 and California common law by using his Civil Code § 3344 and California common law by using his likeness as part of the NCAA Football video series?likeness as part of the NCAA Football video series?

2.2. Was EA’s NCAA Football video series Was EA’s NCAA Football video series transformative transformative enough to enough to qualify for First Amendment protection as a qualify for First Amendment protection as a matter of law?matter of law?

3.3. Given the nature of NCAA Bylaw 12.5, specifically Given the nature of NCAA Bylaw 12.5, specifically prohibiting commercial licensing of an NCAA athlete’s prohibiting commercial licensing of an NCAA athlete’s name or picture; if Keller’s complaint is upheld at the name or picture; if Keller’s complaint is upheld at the California Supreme Court, should any putative damages California Supreme Court, should any putative damages be awarded to Keller and those listed in the class action be awarded to Keller and those listed in the class action law suit; or should the decision of an injunction be law suit; or should the decision of an injunction be sufficient?sufficient?

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Groups, Assignments, Groups, Assignments, Submissions and Submissions and conductconduct

Attorney’s for Electronic Arts Inc., Attorney’s for Electronic Arts Inc., Plaintiffs - AppelleesPlaintiffs - Appellees

Attorney’s for Samuel Michael Keller- Attorney’s for Samuel Michael Keller- Defendant-Appellant Defendant-Appellant

California Supreme Court – 7 NeededCalifornia Supreme Court – 7 Needed

The Groups before the California The Groups before the California Supreme Court: Supreme Court:

1.1. All group members are to read the All group members are to read the case before the first group meeting case before the first group meeting next Wedensday.next Wedensday.

2.2. Each time the group meets, they will Each time the group meets, they will receive a new worksheet. receive a new worksheet. Assignments need to be made from Assignments need to be made from those worksheets and divided up those worksheets and divided up among the group. among the group.

3.3. Each member is responsible for doing Each member is responsible for doing their part. Each time the group meets, their part. Each time the group meets, members are expected to bring their members are expected to bring their completed assignments with them for completed assignments with them for review and discussion.review and discussion.

Group Assignments:Group Assignments:

4.4. Assignments need to be Assignments need to be found, found, read, interpretedread, interpreted and and ready to be ready to be shared and discussed with the shared and discussed with the group.group.

5.5. Each group member Each group member must must participate participate in the mock trial either in the mock trial either as a participant as a participant or support.or support. No No exceptions will be allowed.exceptions will be allowed.

Group Assignments:Group Assignments:

Worksheets are given to each group each time Worksheets are given to each group each time the group meets. the group meets.

On the worksheet, there will be many legal On the worksheet, there will be many legal questions and passages pertaining to the case. questions and passages pertaining to the case.

These sections must be divided up among These sections must be divided up among group members for the week.group members for the week.

When the group meets again, these sections When the group meets again, these sections are discussed in detail by those assigned to are discussed in detail by those assigned to them.them.

This is an extremely important facilitation of This is an extremely important facilitation of the meeting.the meeting.

What are Worksheets?What are Worksheets?

Attorneys are not to converse with the justices Attorneys are not to converse with the justices or the opposing side regarding this case.or the opposing side regarding this case.

Only group members are allowed to attend Only group members are allowed to attend meetings-no comingling of groups. meetings-no comingling of groups. Members Members can be removed.can be removed.

Bribery of any kind is not acceptable.Bribery of any kind is not acceptable. You are to conduct yourself in a professional You are to conduct yourself in a professional

manner at manner at all times all times prior to and during the prior to and during the trial.trial.

Claiming someone else's work as your own Claiming someone else's work as your own could get your expelled from the case and could get your expelled from the case and classroom. classroom.

Professional dress is expected at the time of Professional dress is expected at the time of the mock trial.the mock trial.

Professional manners and courtesy towards Professional manners and courtesy towards others is always expected.others is always expected.

Rules of Conduct:Rules of Conduct:

ATTORNEYS:ATTORNEYS: Research & DiscoveryResearch & Discovery Questions and Questions and

considerations (from considerations (from worksheets)worksheets)

Development of the Development of the argumentargument

Final outline for court Final outline for court presentationpresentation

Development of Case Study:Development of Case Study:JUSTICES:• Research &

Discovery on all issues in the matter.

• Questions and considerations

• Discussion of all claims

• Written Opinion regarding each claim

• Written questions to be asked during trial.

Each individual judge is responsible for Each individual judge is responsible for the followingthe following::

A opinion based on A opinion based on legal research legal research regarding each claim regarding each claim made by the Plaintiff. made by the Plaintiff. A listing of each A listing of each reference to reference to accompany your accompany your personal researchpersonal researchAll discovery and All discovery and research research documentation documentation (Each individual (Each individual needs to write their needs to write their name on their own name on their own work prior to it being work prior to it being distributed to others.) distributed to others.)

ATTORNEYS: ATTORNEYS: Each individual attorney is Each individual attorney is responsible for the following:responsible for the following:

If you participated in the trial: If you participated in the trial: The introduction used for your The introduction used for your opening statements, all argument opening statements, all argument information outlined and rebuttal information outlined and rebuttal notes.notes.

All discovery and research All discovery and research documentation from every documentation from every individual. Each individual needs individual. Each individual needs to write their name on their own to write their name on their own work prior to it being distributed work prior to it being distributed to others. . to others. .

A listing of each reference to A listing of each reference to accompany your personal accompany your personal research.research.

Attendance Attendance (Includes being on time and (Includes being on time and staying until the group is finished meeting staying until the group is finished meeting for the day.)for the day.)

Participation in meaningful group Participation in meaningful group discussion. discussion.

Brining your research to each group Brining your research to each group meeting meeting to share withto share with members of the members of the group. group.

Being Prepared for the meeting and not Being Prepared for the meeting and not relying on others to “carry you” though it.relying on others to “carry you” though it.

What’s Expected from you What’s Expected from you during each during each group meeting:group meeting:

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Group LeadersGroup Leaders

Group Leader Criteria:Group Leader Criteria:

Each group will have a group leader. Each group will have a group leader. These individuals will be responsible for making These individuals will be responsible for making

sure that the group stays on task. They will be sure that the group stays on task. They will be responsible for the following:responsible for the following:

Attending every meeting Attending every meeting Facilitate the meetingsFacilitate the meetings Keep role of the groupKeep role of the group Track assignments of individualsTrack assignments of individuals Keep the group meetings on task and focusedKeep the group meetings on task and focused Schedule and hold at least one outside Schedule and hold at least one outside

meeting for their group. meeting for their group. Report on their groups progress after each Report on their groups progress after each

meeting to the instructor either via e-mail or meeting to the instructor either via e-mail or in person. Report any issue that arises and in person. Report any issue that arises and needs instructor attention.needs instructor attention.

Group Leader TemplateGroup Leader Template

Failure to attend group meetings.Failure to attend group meetings. Failure to keep group on taskFailure to keep group on task Failure to schedule and hold outside Failure to schedule and hold outside

meeting with group.meeting with group. Failure to report group progress to Failure to report group progress to

instructor on a regular basis.instructor on a regular basis. Failure to support overall group effort, Failure to support overall group effort,

i.e., failure to do their part!!!i.e., failure to do their part!!! Complaints from team members of poor Complaints from team members of poor

performance or lack of performance.performance or lack of performance. If a group leader is removed, they do not If a group leader is removed, they do not

receive points as a group leaderreceive points as a group leader

Group Leaders can be removed for Group Leaders can be removed for the following reasons:the following reasons:

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Oral ArgumentOral Argument

Presiding Justice – Brief Statement of the Presiding Justice – Brief Statement of the casecase

Appellees – Plaintiffs - For Electronic Arts Inc.,- Appellees – Plaintiffs - For Electronic Arts Inc.,- ORAL ARGUMENT – approx. 20 minutes in lengthORAL ARGUMENT – approx. 20 minutes in length

Appellant - Defendant ForAppellant - Defendant For Samuel Michael Samuel Michael KellerKeller-- ORAL ARGUMENT - approx. 20 minutes in ORAL ARGUMENT - approx. 20 minutes in lengthlength

Appellees – Plaintiffs For Electronic Arts Inc- Appellees – Plaintiffs For Electronic Arts Inc- Rebuttal – 5 minutesRebuttal – 5 minutes

Appellant - Defendant Samuel Michael Keller- Appellant - Defendant Samuel Michael Keller- Rebuttal- 5 minutesRebuttal- 5 minutes

Deliberations by Justices– approx. 10-15 minutesDeliberations by Justices– approx. 10-15 minutes Opinion given by Justices – 7 minutesOpinion given by Justices – 7 minutes

Oral argumentOral argument

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Use of charts:Use of charts:

You may choose to use You may choose to use any of the followingany of the following methods for presenting methods for presenting and illustrating your case:and illustrating your case:Charts & GraphsCharts & GraphsPhotosPhotosHandoutsHandouts

Submission to the Justices onlySubmission to the Justices only

Presenting Presenting Your Case:Your Case:

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Charts must be professional Charts must be professional looking in nature.looking in nature.

No tattered paper or hand No tattered paper or hand drawn charts! They must drawn charts! They must be computer generated!be computer generated!

Use charts that are Use charts that are readable from up to 20 feet readable from up to 20 feet away.away.

They must be able to stand-They must be able to stand-up on their own. Use of a up on their own. Use of a cardboard backing is cardboard backing is preferred!preferred!

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Points InvolvedPoints Involved

Research Points: 50Research Points: 50 This research does include a manifold of cases pertaining This research does include a manifold of cases pertaining

to the trial. Research includes no less than 10 sources of to the trial. Research includes no less than 10 sources of quality quality cases and articlescases and articles coming from the law library, Lexis-Nexis, case coming from the law library, Lexis-Nexis, case law, legal journal reviews, Wall Street Journal, Washington Post, law, legal journal reviews, Wall Street Journal, Washington Post, New York Times, primary sources, etc. New York Times, primary sources, etc.

Participation Points: 25 Participation Points: 25 Participation Defined: Includes researching and reading Participation Defined: Includes researching and reading

your assignments, preparation of those assignments, i.e., ready to your assignments, preparation of those assignments, i.e., ready to discuss what you have found with the group, active discussion of discuss what you have found with the group, active discussion of the cases, voicing ideas and concerns, supporting the group by the cases, voicing ideas and concerns, supporting the group by actively contributing to the development of the argument and actively contributing to the development of the argument and being a team player. Being on time to the meetings. Staying with being a team player. Being on time to the meetings. Staying with the group until the work is complete for that meeting. Showing the group until the work is complete for that meeting. Showing professional conduct at all times. professional conduct at all times.

Mock Trial Points: 25Mock Trial Points: 25 Mock Trial Points Defined: Not everyone can participate in Mock Trial Points Defined: Not everyone can participate in

the Mock Trial’s due to time constrains alone. However, these the Mock Trial’s due to time constrains alone. However, these points define your overall support of your colleagues during the points define your overall support of your colleagues during the trial. Being on time to the trial, participating, assisting with the trial. Being on time to the trial, participating, assisting with the rebuttal, being supportive of the team, all are looked upon as part rebuttal, being supportive of the team, all are looked upon as part of these points. Not showing up to the mock trial not only will result of these points. Not showing up to the mock trial not only will result in a loss of points, but will have devastating effects on your overall in a loss of points, but will have devastating effects on your overall grade for this project.grade for this project.

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GradingGrading

Evaluation FormsEvaluation Forms

Evaluations sheets are Evaluations sheets are given to each member of given to each member of the group following the the group following the conclusion of the mock conclusion of the mock trail. These forms are trail. These forms are confidential in nature and confidential in nature and scope, and not shared scope, and not shared with anyone. On this with anyone. On this form, you give yourself form, you give yourself and your peers a grade. and your peers a grade. The third and final score The third and final score comes from your comes from your instructor.instructor.

Grading:Grading:

Your grade will Your grade will be a blended be a blended grade based on grade based on the following the following three inputs:three inputs:

1. Self score1. Self score2. Group 2. Group score (Group score (Group Members Members individual individual score)score)3. Instructor 3. Instructor scorescore

NOTE: NOTE: These These scores are not scores are not disclosed to disclosed to anyone.anyone.

Name Ins. Score Total Average Grade

Joe Student 79 89 100 95 95 70 70 59885.428

57 B

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MOCK TRIAL SCHEDULEMOCK TRIAL SCHEDULE

Mock Trial Kick-Off- Wednesday, October 16thMock Trial Meeting #1-Wednesday, October 23Mock Trial Meeting #2 – Wednesday, October 30Mock Trial Meeting #3 – Friday, November 6thMock Trial Meeting #4- Wednesday, November 13th Dress Rehearsal – November November 20thMock Trial Rehearsal/Meeting #5- Groups meet outsideClass rehearsal – December 2ndMOCK TRIAL– Wednesday, December 4 th @ 11:00– FCC

Law LibraryYou are required to be at the library no later than 10:40

am.

Professional dress ONLY