Fall 2010 open memo assignment no doubt v. activision right of publicity california section 16
MEMORANDUMTO: Junior Associates, RWA Section 16FROM: Senior Partner Goering and Senior Associate MalonyRE: No Doubt v. Activision Publishing, Inc.DATE: November 3, 2010 Our firm has been retained by Activision Publishing, Inc., a successful producer anddistributor of video games, to assist in defending a complaint filed by No Doubt,a group ofmusical performers. The band filed a lawsuitin the Los Angeles Superior Court allegingseveral counts against our client. However, the only one we are concerned with is the secondcause of action alleging violation of California Civil Code § 3344 and the common law rightof publicity. Do not research any other claims. Shortly after No Doubt filed its complaint in Los Angeles County Superior Court,defendant Activision Publishing, Inc. removed the case to federal court, invoking 28 U.S.C. §1446.Activision argued that the U.S. Copyright Act preempted No Doubt’s state law claims,and for that reason invoked the federal court’s exclusive jurisdiction to consider federalcopyright claims. However, the federal court rejected Activision’s argument and remandedthe case to state court in an order dated January 14, 2010.While the case was still pending infederal court, Activision filed an answer and counterclaim against No Doubt. In turn, NoDoubt filed an answer to Activision’s counterclaim. After considering the parties’ arguments, the federal court issued an order remandingthe case to state court, holding that the Copyright Act did not preempt the state law claims.That order is not at issue at this time. However, Activision’s Notice of Removal, the federalcourt’s Order to Show Cause, and the Order Remanding to State Court are included for therecord so you understand why some of the pleadings were filed in federal court. The case is now proceeding in the Los Angeles Superior Court of the State ofCalifornia, and that court will make any further decisions in the case, subject to appeal to theCalifornia appellate courts. The primary documents you need to review are the Complaint,the Answer and Counterclaim, and the Answer to Counterclaim. You can sort out the factsfrom those documents, but be sure to carefully note that some facts are undisputed or“admitted,” while others are hotly disputed. The relevant documents are posted on the TWEN website in a separate folder titled“Open Memo No. 3” under the “Writing Assignments” tab. Please download and carefullyreview those documents before proceeding with the assignment. Based upon the facts alleged in the pleadings, please analyzethe following questionsin a formal office memo: 1. Are No Doubt’s claims for violation of the statutory and common law rights of publicity barred by the First Amendment to the U.S. Constitution or by Article 1, § 2 of the California Constitution?
2. Are No Doubt’s claimsfor violation of the statutory and common law rights of publicity barred by the Professional Services and Character License Agreement dated May 21, 2009? Your memo should include a heading similar to the heading of this memo. Use 12-point Times New Roman font and one-inch margins. Except for the heading, please double-space your memo and number the pages, centered at the bottom of each page. Please do notexceed ten double-spaced pages. (If longer, I will read only the first ten pages.) You may discuss the assignment and the legal authorities with other first-yearstudents in Professor Goering’s RWA Sections (13 or 16). You may also discuss theassignment with Victoria Malony during her office hours or by appointment. Do not discussthe assignment with anyone else, including your other professors, roommates, parents,siblings, relatives, friends, acquaintances, or strangers. Finally, your writing must beexclusively yours. You may not show your written work to anyone except Victoria Malonyor me. Victoria is not authorized to edit or revise your written work, which must beexclusively your own. You are expected to do your best work on your memo, which isequivalent to the final exam in this course.Your memo is due Tuesday, November 23,2010, no later than 5:00 p.m. 2