and Submitted March 16, 2016 San Francisco, California
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
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
H. MacMichael (argued), Tia A. Sherringham, R. Adam
Lauridsen, Steven A. Hirsch, and Susan J. Harriman, Keker
& Van Nest LLP, San Francisco, California, for
Before: Andrew J. Kleinfeld, Johnnie B. Rawlinson, and Andrew
D. Hurwitz, Circuit Judges.
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.
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
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.
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.
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.
HURWITZ, Circuit Judge.
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
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 ...