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Antonick v. Electronic Arts, Inc.

United States Court of Appeals, Ninth Circuit

November 22, 2016

Robin Antonick, an Illinois Citizen, Plaintiff-Appellant,
v.
Electronic Arts, Inc., a California corporation, Defendant-Appellee.

          Argued and Submitted March 16, 2016 San Francisco, California

         Appeal from the United States District Court No. 3:11-cv-01543-CRB for the Northern District of California Charles R. Breyer, Senior District Judge, Presiding

          David Nimmer (argued), Irell & Manella LLP, Los Angeles, California; Stuart McKinley Paynter (argued), Jennifer L. Murray, and Sara Willingham, The Paynter Law Firm PLLC, Washington, D.C.; Robert B. Carey and Leonard W. Aragon, Hagens Berman Sobol Shapiro LLP, Phoenix, Arizona; Steve W. Berman, Hagens Berman Sobol Shapiro LLP, Seattle, Washington; Walter H. Sargent, Walter H. Sargent P.C., Colorado Springs, Colorado; Peter S. Menell, Berkley, California; for Plaintiff-Appellant.

          Eric H. MacMichael (argued), Tia A. Sherringham, R. Adam Lauridsen, Steven A. Hirsch, and Susan J. Harriman, Keker & Van Nest LLP, San Francisco, California, for Defendant-Appellee.

          Before: Andrew J. Kleinfeld, Johnnie B. Rawlinson, and Andrew D. Hurwitz, Circuit Judges.

         SUMMARY [*]

         Copyright

         The panel affirmed the district court's judgment as a matter of law in favor of Electronic Arts, Inc., in a diversity action seeking unpaid royalties pursuant to a contract, arising from alleged copyright infringement.

         Plaintiff Robin Antonick developed the computer code for the original John Madden Football game for the Apple II computer, which was released by Electronic Arts. Electronic Arts subsequently released Madden games for Sega Genesis and Super Nintendo for which plaintiff received no royalties under a 1986 contract.

         Concerning plaintiff's Sega claims, the panel held that the plaintiff did not provide sufficient evidence of copyright infringement because neither the source code used for Apple II Madden nor Sega Madden was in evidence. The panel also rejected plaintiff's argument that Electronic Arts's post-verdict Fed.R.Civ.P. 50(b) motion for judgment as a matter of law regarding the intrinsic test for copyright infringement should not have been considered.

         Concerning plaintiff's Super Nintendo claims, the panel held that the district court did not err in dismissing plaintiff's derivative work claims because the Apple II and Super Nintendo processors were not in the same microprocessor family, as defined by the parties' contract. The panel also affirmed the district court's conclusion that the jury could not have determined plaintiff's damages from the alleged breach of contract to a reasonable certainty. The panel further held that, even if the district court erred, there was no harm, because plaintiff's failure to introduce any source code precluded a finding that Super Nintendo Madden was a derivative work.

         Finally, the panel held that plaintiff offered no evidence of purported damages arising from plaintiff's claim that Electronic Arts used development aids to create non-derivative works without seeking a negotiated license.

          OPINION

          HURWITZ, Circuit Judge.

         In this case, the plaintiff claimed copyright infringement. But the contents of the copyrighted work and the allegedly infringing works were never introduced into evidence. The district court held that the claim failed as a matter of law. We agree, and affirm.

         I. Background

         Robin Antonick developed the computer code for the original John Madden Football game for the Apple II computer ("Apple II Madden"). Electronic Arts, Inc. ("EA") released Apple II Madden in 1988. Apple II Madden, the first football video game with 11 players on each side, was an instant hit, the best seller of any sports video game of its time. Antonick subsequently programmed ...


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