Original Madden Developer Loses out on Millions in Royalties

Any gamer knows the Madden franchise. It might as well be the only football video game on the market. "Football video game" and "Madden [put any year since 1992 here]" are so synonymous that using the two phrases in the same sentence is probably a little redundant. Being redundant, however, is probably the last thing that Antonick's lawyers will be accused of after this case.

In Antonick v. Electronic Arts, an original developer of the extremely popular video game franchise hoped to obtain a massive amount in past royalties thanks to a “Derivative Work” clause buried in his 1986 contract with Electronic Arts (“EA”). ;While the developer’s intentions seemed good – and whole-heartedly driven by dollar signs in his eyes—his attorney’s execution in this case will leave all ambitious video game developers with an acidic taste in their mouth.

First Rule of Evidence: If You Need It, Introduce It
Back during the infancy of John Madden Football (“Madden”) and EA, Robin Antonick developed the code for the original Madden game designed for the Apple II. Thanks to the success of this version of the game, in 1989, Antonick began working on a Madden version for the Sega and Nintendo consoles. However, a year later EA told him to stop all development because they wanted to go with a more “arcade” feel to their games.
Despite this change in gears by the EA brass, the interface of the game – according to an assistant producer of the original Madden game that took the stand – “looked identical to the Apple II version.” Antonick, believing that the code for the new versions of Madden were derivative works of his original Apple II version, filed ;a lawsuit seeking royalties for every single game in this juggernaut of a franchise.
Unfortunately for Antonick, the expert testimony that his attorney propped the entire case up on crumbled faster than a cookie in the hand of a toddler. Instead of actually introducing the code of the Apple II version and the Sega and Nintendo versions to point out the stark similarities to the interface and coding of the game, Antonick attempted to use testimony to show a jury that the games were substantially similar. ;While it seemed to work after the jury came back with a favorable verdict, the overall outcome was not favorable for Antonick after the judge got his hands on it.

Can’t Pass a Test Without Putting Down an Answer The Ninth Circuit uses a two part test when determining when one work is substantially similar to another.; According to Benay v. Warner Bros. Entm’t, Inc., 607 F.3d 620,;624 (9th Cir. 2010) a plaintiff must prove both substantial similarity under the “extrinsic test” and substantial similarity under the “intrinsic test.” The “extrinsic test” is an objective comparison of specific expressive elements. The “intrinsic test” is a subjective comparison that focuses on whether the ordinary, reasonable audience would find the works substantially similar in the total concept and feel of the works.

Although a jury found that Antonick was entitled to royalties, the district court granted a judgment as a matter of law to EA under the “intrinsic test” because “the jury had no evidence of [the] Apple II Madden or [the] Sega Madden.” The Ninth Circuit affirmed this ruling stating that “our law is clear that expert testimony cannot satisfy a plaintiff’s burden of proof under the intrinsic test.” The court goes on to say that the lay witness testimony of how the games appeared was also useless because the coding of the games was the real issue at hand, not whether or not gamers thought the interface was similar.

After this ruling, it is safe to say that Antonick certainly missed the gravy boat that is the Madden franchise. While he had a good argument that he deserved at least some residual cash for his initial work on the ever-so popular game, his execution of his case was so poorly handled that he will probably wake up with night-sweats thinking about what could have been.; Let’s hope the game developer has another billion dollar coding idea hidden somewhere up his sleeve to make up for this series of unfortunate mishaps.

Ninth Circuit Leave States 'Standing' There With Egg On Their Face

You can’t make an omelet without cracking a couple eggs. In California, you can’t even get those eggs unless the farmers follow the Golden State’s strict Shell Egg Laws.  Egg farmers outside of California are a bit pissed about these laws, trying ever-so-hard to get this law overturn. Six states came together and filed a lawsuit in the Ninth Circuit to challenge the validity of these California’s law. The result was not exactly favorable for these out-of-state farmers.

These Chickens Need Room to Stretch Those Legs

In 2008, California voters adopted a law that stated hens may not be confined for the majority of any day.  In order to be compliant, farmers cannot prevent hens from lying down, standing up, fully extending their limbs, and turning around freely. Two years later, California adopted legislation which mandated that a shelled egg cannot be sold or contract for human consumption in California if the seller knows or should have known that the egg came from a hen that was not housed under these laws.

Missouri got the ball rolling in February 2014 by filing a lawsuit claiming that California’s Shell Egg Law violated the Commerce Clause. The States of Nebraska, Oklahoma, Alabama, and Kentucky and Iowa were later added on as additional plaintiffs because, well, they feared the law, too. Unfortunately, these states failed to qualify the biggest hurdle every lawsuit must clear…standing.

Stop Yawning, Standing Is Dreadful Great

Standing might not be the sexiest ways to have a lawsuit dismissed, but it is highly effective nonetheless.  Heck, some of this country’s landmark cases have been decided strictly on this issue.

The six states advanced several theories on why California’s Shell Egg Laws caused their states injuries in fact. First, the six states allege harm to their egg farmers. Next, they argue that the Shell Egg Laws will cause harmful fluctuations in the price of eggs. Finally, they claim that they will suffer discrimination from the Shell Egg Laws. The three judge panel was hardly convinced in any of the states’ arguments.  The Ninth Circuit ruled that the farmers themselves probably have standing, not the states.  Unless the states can prove actual, not speculative, harm to their states because of these California rules, then this case has no merits to be in front of them.

The Ninth Circuit did, however, provide the states with some wriggle room to bring this action back to court. Although the lower court ruled that this case was dismissed with prejudice, the Ninth reversed that part of the ruling saying that since this is a Subject Matter Jurisdiction issue, it should have dismissed without prejudice. 

While finding a new way to argue standing might be a tall task for these states, we will have to wait and see what eggs-actly happens from here.

The Habitual Drunkard and His Immoral Character

When someone is called an alcoholic, it is rarely considered a compliment. But is alcoholism such an iniquitous trait that it justifies the deportation of an illegal alien?

While Congress may think so, the Ninth Circuit considered the idea to be absolutely ridiculous and decided to take a stand on the morality of alcoholism. In Salomon Ledezma-Cosino V. Loretta E. Lynch, the Ninth Circuit Court of Appeals ruled that Congress's inclusion of 'habitual drunkard’ as a type of “bad moral character” in order to limit a non-citizen's eligibility for cancellation or voluntary departure is unconstitutional. Under the guise of the equal protection clause, the court found that there is no rational basis for classifying persons afflicted by chronic alcoholism as persons who lack good moral character.

According to the NIH, roughly 7% of Americans 18 and older suffer from an alcohol use disorder. The majority reasoned that chronic alcoholism is a medical condition that produces an irresistible urge to constantly consume alcohol. Because of this inability to say no to the hooch, the court stated that like any other medical condition, alcoholism is undeserving of punishment and should not be held morally offensive.

Just Put the Drink Down You Sick Alien

After a rather fiery oral arguments, it is no surprise that Judge Clifton sees the issue completely differently than the majority. In his dissent, Clifton list several reasons why Congress has the right to use a habitual drunkard standard if they so choose. First, he says a 'rational basis' hurdle is easily cleared, relying mainly on Congress' plenary powers over aliens.

Clifton then goes on to trash the idea that being a habitual drunkard is even a medical condition. He seems to be of the belief that all alcoholics have the free will to stop drinking whenever they please. To jam his dissent even further down the majority’s throat, he states that even if being a habitual drunkard is a medical condition, Congress has the power to "decide that the country should not accept or harbor sick aliens who might infect others or whose treatment might impose heavy costs."

This could be an interesting opinion to keep tabs on if it gets appealed. Whether or not being a "habitual drunkard" and having "bad moral character" are intertwined should be an issue that hits close to home for most lawyers. Because if the two are synonymous, becoming and staying a lawyer is going to to be awfully difficult for those trying to pass a state bar moral character test.