{ Welcome to the Mock Trial Kickoff! Are you ready?

{ Electronic Arts Inc. v. Keller (A California Supreme 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 familiar literary 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).”

“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.”

{ The History Electronic Arts, Inc., = (EA) NCAA = National Collegiate Athletic Association (“NCAA”) football or basketball players

“Samuel Keller was the starting quarterback for Arizona State University in 2005 before he transferred to the University 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.” _u_keller_275.jpg

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

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

“2 There are actually nine named plaintiffs, all former National Collegiate Athletic 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.” Not exacting - Bulleted for emphasis.

“Finally, as a qualitative matter, the publicity rights of college athletes are remarkably restricted. This consideration is critical because the “right to exploit commercially one’s celebrity 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 benefitting economically from any success on the field. NCAA Bylaw 12.5 specifically prohibits commercial licensing of an NCAA athlete’s name or picture. NCAA, 2012–13 NCAA Division I Manual § (2012). Before being allowed to compete each year, all Division I NCAA athletes must sign a contract stating that they understand the prohibition on licensing and affirming 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.”

keller-supreme-court-ncaa/ /

{ Questions Before This Court

Questions before this court: 1. Did EA violate Keller’s right of publicity under California Civil Code § 3344 and California common law by using his likeness as part of the NCAA Football video series? 2. Was EA’s NCAA Football video series transformative enough to qualify for First Amendment protection as a matter of law? 3. Given the nature of NCAA Bylaw 12.5, specifically prohibiting commercial licensing of an NCAA athlete’s name or picture; if Keller’s complaint is upheld at the California Supreme Court, should any putative damages be awarded to Keller and those listed in the class action law suit; or should the decision of an injunction be sufficient?

{ Groups, Assignments, Submissions and conduct

Attorney’s for Electronic Arts Inc., Attorney’s for Electronic Arts Inc., Plaintiffs - Appellees Plaintiffs - Appellees Attorney’s for Samuel Michael Keller- Attorney’s for Samuel Michael Keller- Defendant-Appellant Defendant-Appellant California Supreme Court – 7 Needed California Supreme Court – 7 Needed The Groups before the California Supreme Court:

1. All group members are to read the case before the first group meeting next Wedensday. 2. Each time the group meets, they will receive a new worksheet. Assignments need to be made from those worksheets and divided up among the group. 3. Each member is responsible for doing their part. Each time the group meets, members are expected to bring their completed assignments with them for review and discussion. Group Assignments:

4. Assignments need to be found, read, interpreted and ready to be shared and discussed with the group. 5. Each group member must participate in the mock trial either as a participant or support. No exceptions will be allowed. Group Assignments:

Worksheets are given to each group each time the group meets. Worksheets are given to each group each time the group meets. On the worksheet, there will be many legal questions and passages pertaining to the case. On the worksheet, there will be many legal questions and passages pertaining to the case. These sections must be divided up among group members for the week. These sections must be divided up among group members for the week. When the group meets again, these sections are discussed in detail by those assigned to them. When the group meets again, these sections are discussed in detail by those assigned to them. This is an extremely important facilitation of the meeting. This is an extremely important facilitation of the meeting. What are Worksheets?

Attorneys are not to converse with the justices or the opposing side regarding this case. Attorneys are not to converse with the justices or the opposing side regarding this case. Only group members are allowed to attend meetings-no comingling of groups. Members can be removed. Only group members are allowed to attend meetings-no comingling of groups. Members 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 manner at all times prior to and during the trial. You are to conduct yourself in a professional manner at all times prior to and during the trial. Claiming someone else's work as your own could get your expelled from the case and classroom. Claiming someone else's work as your own could get your expelled from the case and classroom. Professional dress is expected at the time of the mock trial. Professional dress is expected at the time of the mock trial. Professional manners and courtesy towards others is always expected. Professional manners and courtesy towards others is always expected. Rules of Conduct:

 ATTORNEYS: Research & Discovery Research & Discovery Questions and considerations (from worksheets) Questions and considerations (from worksheets) Development of the argument Development of the argument Final outline for court presentation Final outline for court presentation 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 the following: A opinion based on legal research regarding each claim made by the Plaintiff. A opinion based on legal research regarding each claim made by the Plaintiff. A listing of each reference to accompany your personal research A listing of each reference to accompany your personal research All discovery and research documentation All discovery and research documentation  (Each individual needs to write their name on their own work prior to it being distributed to others.)

ATTORNEYS: Each individual attorney is responsible for the following: Each individual attorney is responsible for the following: If you participated in the trial: The introduction used for your opening statements, all argument information outlined and rebuttal notes. If you participated in the trial: The introduction used for your opening statements, all argument information outlined and rebuttal notes. All discovery and research documentation from every individual. Each individual needs to write their name on their own work prior to it being distributed to others.. All discovery and research documentation from every individual. Each individual needs to write their name on their own work prior to it being distributed to others.. A listing of each reference to accompany your personal research. A listing of each reference to accompany your personal research.

Attendance (Includes being on time and staying until the group is finished meeting for the day.) Attendance (Includes being on time and staying until the group is finished meeting for the day.) Participation in meaningful group discussion. Participation in meaningful group discussion. Brining your research to each group meeting to share with members of the group. Brining your research to each group meeting to share with members of the group. Being Prepared for the meeting and not relying on others to “carry you” though it. Being Prepared for the meeting and not relying on others to “carry you” though it. What’s Expected from you during each group meeting:

{ Group 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 sure that the group stays on task. They will be responsible for the following: Attending every meeting Attending every meeting Facilitate the meetings Facilitate the meetings Keep role of the group Keep role of the group Track assignments of individuals Track assignments of individuals Keep the group meetings on task and focused Keep the group meetings on task and focused Schedule and hold at least one outside meeting for their group. Schedule and hold at least one outside meeting for their group. Report on their groups progress after each meeting to the instructor either via or in person. Report any issue that arises and needs instructor attention. Report on their groups progress after each meeting to the instructor either via or in person. Report any issue that arises and needs instructor attention.

Group Leader Template

Failure to attend group meetings. Failure to attend group meetings. Failure to keep group on task Failure to keep group on task Failure to schedule and hold outside meeting with group. Failure to schedule and hold outside meeting with group. Failure to report group progress to instructor on a regular basis. Failure to report group progress to instructor on a regular basis. Failure to support overall group effort, i.e., failure to do their part!!! Failure to support overall group effort, i.e., failure to do their part!!! Complaints from team members of poor performance or lack of performance. Complaints from team members of poor performance or lack of performance. If a group leader is removed, they do not receive points as a group leader If a group leader is removed, they do not receive points as a group leader Group Leaders can be removed for the following reasons:

{ Oral Argument

 Presiding Justice – Brief Statement of the case Appellees – Plaintiffs - For Electronic Arts Inc.,- ORAL ARGUMENT – approx. 20 minutes in length Appellees – Plaintiffs - For Electronic Arts Inc.,- ORAL ARGUMENT – approx. 20 minutes in length Appellant - Defendant For Samuel Michael Keller - ORAL ARGUMENT - approx. 20 minutes in length Appellant - Defendant For Samuel Michael Keller - ORAL ARGUMENT - approx. 20 minutes in length Appellees – Plaintiffs For Electronic Arts Inc- Rebuttal – 5 minutes Appellees – Plaintiffs For Electronic Arts Inc- Rebuttal – 5 minutes Appellant - Defendant Samuel Michael Keller- Rebuttal- 5 minutes Appellant - Defendant Samuel Michael Keller- Rebuttal- 5 minutes Deliberations by Justices– approx minutes Deliberations by Justices– approx minutes Opinion given by Justices – 7 minutes Opinion given by Justices – 7 minutes Oral argument

{ Use of charts:

You may choose to use any of the following methods for presenting methods for presenting and illustrating your case: Charts & Graphs Charts & Graphs Photos Photos Handouts Handouts  Submission to the Justices only Presenting Your Case:

{  Charts must be professional looking in nature.  No tattered paper or hand drawn charts! They must be computer generated!  Use charts that are readable from up to 20 feet away.  They must be able to stand-up on their own. Use of a cardboard backing is preferred!

{ Points Involved

Research Points: 50 Research Points: 50 This research does include a manifold of cases pertaining to the trial. Research includes no less than 10 sources of quality cases and articles coming from the law library, Lexis-Nexis, case law, legal journal reviews, Wall Street Journal, Washington Post, New York Times, primary sources, etc. This research does include a manifold of cases pertaining to the trial. Research includes no less than 10 sources of quality cases and articles coming from the law library, Lexis-Nexis, case law, legal journal reviews, Wall Street Journal, Washington Post, New York Times, primary sources, etc.  Participation Points: 25 Participation Defined: Includes researching and reading your assignments, preparation of those assignments, i.e., ready to discuss what you have found with the group, active discussion of the cases, voicing ideas and concerns, supporting the group by actively contributing to the development of the argument and being a team player. Being on time to the meetings. Staying with the group until the work is complete for that meeting. Showing professional conduct at all times. Participation Defined: Includes researching and reading your assignments, preparation of those assignments, i.e., ready to discuss what you have found with the group, active discussion of the cases, voicing ideas and concerns, supporting the group by actively contributing to the development of the argument and being a team player. Being on time to the meetings. Staying with the group until the work is complete for that meeting. Showing professional conduct at all times. Mock Trial Points: 25 Mock Trial Points: 25 Mock Trial Points Defined: Not everyone can participate in the Mock Trial’s due to time constrains alone. However, these points define your overall support of your colleagues during the trial. Being on time to the trial, participating, assisting with the 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 in a loss of points, but will have devastating effects on your overall grade for this project. Mock Trial Points Defined: Not everyone can participate in the Mock Trial’s due to time constrains alone. However, these points define your overall support of your colleagues during the trial. Being on time to the trial, participating, assisting with the 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 in a loss of points, but will have devastating effects on your overall grade for this project.

{Grading

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

Grading: Your grade will be a blended grade based on the following three inputs: Your grade will be a blended grade based on the following three inputs: 1. Self score 1. Self score 2. Group score (Group Members individual score) 2. Group score (Group Members individual score) 3. Instructor score 3. Instructor score NOTE: These scores are not disclosed to anyone. NOTE: These scores are not disclosed to anyone. Name Ins. ScoreTotalAverageGrade Joe Student B

{ MOCK TRIAL SCHEDULE Mock Trial Kick-Off- Wednesday, October 16th Mock Trial Meeting #1-Wednesday, October 23 Mock Trial Meeting #2 – Wednesday, October 30 Mock Trial Meeting #3 – Friday, November 6th Mock Trial Meeting #4- Wednesday, November 13 th Dress Rehearsal – November November 20th Mock Trial Rehearsal/Meeting #5- Groups meet outside Class rehearsal – December 2nd MOCK TRIAL– Wednesday, December 4 11:00– FCC Law Library You are required to be at the library no later than 10:40 am. Professional dress ONLY