OPTION A case for session Two.
Please note that you should review general instructions on the module for Option A and briefing a case document directions and also read the specific instructions given below. These instructions for option A, session two address not only the dissenting opinion, but what you need to do for questions 2 and 4. Please read chapter 6, and pay attention to the tort of appropriation. Some state laws refer to appropriation as a right of publicity, others find appropriation is an invasion of privacy while a right of publicity is taking identity for commercial gain.
Case for Session Two: In Re: NCAA Student-Athlete Name & Likeness, Keller v. Electronic Arts , 9th circuit, July 31, 2013. (Note that in 2014 the US Supreme Court denied review (sought through certiorari by Electronic Arts) of this case meaning the US Supreme Court neither agrees nor disagrees with the majority decision.
To find the case, use Lexis Nexis and Type Keller in the plaintiff’s box and Electronic Arts in the defendant’s box (Lexis/Nexis find a legal case). In your brief caption, the party names will follow In RE (You can copy the abbreviated caption for your brief as given above). It is up to you to add the citation, date, etc.
Not Putative class action: There is no need to spend time discussing the putative class action in your brief or in any of your answers. This simply means that while 9 plaintiffs are involved at this stage, more might be added later if the court denies defendant’s motion.
The caption here is “In Re” since the court is considering whether the complaint can even be considered by the court, owing to the defendant’s motion to strike using the anti-SLAPP law.
Strike a complaint: the defendant moved to strike Keller’s complaint (have it dismissed)
Anti-SLAPP defense: The defendant used the anti-SLAPP statute as a basis for striking the complaint.
The California anti-SLAPP statute is described in the opinion. The goal of this statute is to protect First Amendment rights when civil lawsuits are filed as a strategic method to suppress and discourage ‘protected’ speech that benefits the public by claiming that other laws (such as trademark infringement, copyright infringement, defamation, right of publicity) have been violated. If the defendant can show that the plaintiff’s case for other legal violations (trademark, etc.) is weak—that the entire lawsuit would work as a strategy discouraging protected expression-- then the court will probably strike the complaint. In this case, the plaintiff agreed at the outset that video games, creative works, are protected expression under the First Amendment. But that does not automatically mean that all speech (all games) will be protected if other laws (copyright, right of publicity) appear to have been violated. So read the case to find out what the court said about the right of publicity and the game in this case. Then read the dissenting opinion, which offers a different perspective of one judge who disagreed with the majority of the appellate court.
Dissenting opinion: You will not include this in your Decision/Reason sections but you must read this and for question 4, you must discusswhether the majority opinion or the dissenting opinion accords with ‘justice’. Your answer to question 4 will therefore be at least a solid paragraph (5-6 sentences at least).
Question 2 Ethical Analysis of plaintiff, defendant and National Collegiate Athletic Association (NCAA) Board: Obviously, give an ethical analysis of the defendant (their game). The ethical analysis of the plaintiff should focus not on the plaintiff but only on the NCAA contractual requirement preventing college athletes (who sign the NCAA contract) from seeking commercial gain. (See the dissenting opinion, footnote 5). Is it ethical to require college athletes to give up their rights of publicity?
Some relevant portions of the anti-SLAPP law in California Code of Civil Procedure.425.16. are as follows: (Source:http://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=CCP§ionNum=425.16
(a) The Legislature finds and declares that there has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances. The Legislature finds and declares that it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process. To this end, this section shall be construed broadly.
(b) (1) A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.
(2) In making its determination, the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.
(3) If the court determines that the plaintiff has established a probability that he or she will prevail on the claim, neither that determination nor the fact of that determination shall be admissible in evidence at any later stage of the case, or in any subsequent action, and no burden of proof or degree of proof otherwise applicable shall be affected by that determination in any later stage of the case or in any subsequent proceeding.
(c) (1) Except as provided in paragraph (2), in any action subject to subdivision (b), a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney’s fees and costs. If the court finds that a special motion to strike is frivolous or is solely intended to cause unnecessary delay, the court shall award costs and reasonable attorney’s fees to a plaintiff prevailing on the motion, pursuant to Section 128.5.on in this case? . . . . . . . ..
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(e) As used in this section, “act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue” includes: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law, (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, or (4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.