Case 1:22-cv-20144-DPG Document 103 Entered on FLSD Docket 02/07/2023 Page 1 of 18
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF FLORIDA
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`Case No. 22-20144-Civ-GAYLES/TORRES
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`RICHARD R. FINCH,
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`Plaintiff,
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`v.
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`HARRY WAYNE CASEY, an individual; and
`HARRICK MUSIC INC., a Florida corporation,
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`Defendants.
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`___________________________________________/
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`ORDER ON THE PARTIES’ MOTIONS FOR SUMMARY JUDGMENT
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`This matter is before the Court on the parties’ cross Motions for Summary
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`Judgment filed by Harry Wayne Casey (“Casey”) and Harrick Music, Inc. (“Harrick”)
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`(collectively, “Defendants”) [D.E. 51], and Richard R. Finch (“Finch” or “Plaintiff”)
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`[D.E. 63]. The parties filed timely responses [D.E. 72, 73] and replies [D.E. 75, 76] to
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`each motion therefore the motions are now ripe for disposition.1 After careful
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`consideration of the briefing materials, the evidence of record, the relevant
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`authorities, and for the reasons discussed below, Defendants’ Motion for summary
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`judgment is GRANTED, Plaintiff’s Motion is DENIED as moot, and the case is
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`dismissed with prejudice.
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`1 On April 1, 2022, the parties consented to the jurisdiction of the Undersigned
`Magistrate over all matters, including dispositive motions, but not for trial.
`[D.E. 32 at 3]. Pursuant to the parties’ consent, the Honorable Darrin P. Gayles
`referred the case to the Undersigned for a ruling on all non-dispositive and dispositive
`matters on November 8, 2022. [D.E. 79].
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`1
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`I. BACKGROUND
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`This is an action for declaratory relief pursuant to Section 203 of the Copyright
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`Act of 1976 (the “Act”). 17 U.S.C. § 201 et seq. Finch filed this action on November
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`11, 2022, seeking a declaration that he has properly exercised his termination rights
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`under § 203 with respect to a 1983 agreement whereby he allegedly transferred his
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`copyright interests in ninety-nine songs to Casey. [D.E. 1]. According to Finch, the
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`ninety-nine songs were co-written by him and Casey in the 1970s while they were
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`members of the musical group KC & The Sunshine Band (the “Band”). [D.E. 41].
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`Between the mid-1970s and early-1980s, the Band, Casey, and Finch, executed
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`several musical commercial agreements, including exclusive writer’s, single song, and
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`publishing agreements with Sherlyn Music Publishing Co., Inc. (“Sherlyn”).2
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`[D.E. 64-3; 64-6; 64-10]. In essence, these agreements transferred to Sherlyn a 50%
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`ownership interest in the copyrights of the Band’s songs. [D.E. 64 at 2–3; 52 at 3–4].
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`Further, in connection with these agreements, Casey and Finch formed a Florida
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`corporation, co-defendant Harrick Music Inc. (“Harrick”), which they designated as
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`their “publishing designee” and which Casey and Finch co-owned on a 50/50 basis.
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`[D.E. 64 at 3].
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`After several years of performing together, Casey and Finch separated in 1979
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`and on October 27, 1983, they formally severed all personal and financial ties through
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`the execution of an agreement titled “Property Division Agreement” (the “1983
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`2 On April 27, 2022, Finch filed an amended complaint that dismissed Sherlyn’s
`successor in interest, EMI Consortium Songs Inc., as a defendant from this lawsuit
`pursuant to private settlement. [D.E. 41; 95].
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`2
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`Case 1:22-cv-20144-DPG Document 103 Entered on FLSD Docket 02/07/2023 Page 3 of 18
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`Agreement”). [D.E. 52-6]. With the agreement, Casey and Finch divided amongst
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`themselves various pieces of tangible and intangible property that they had
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`previously owned together. Id. Among other things, the contract provided that, in
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`exchange for valuable consideration, Finch would transfer to Casey all his titles,
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`rights, and interests in any of the copyrights of their music, as well as his 50%
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`ownership interest in Harrick and other Band related enterprises. [D.E. 52-1 at 96–
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`98; 52-6; 64-8 at 107–09]. The agreement contains an exhibit titled “INTANGIBLES
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`ASSIGNMENTS” that expressly conveyed to Casey all of Finch’s interests in any
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`intangible assets, including copyrights and intellectual property. [D.E. 52-1 at 37].
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`However, soon after execution of the contract Finch sought to rescind the agreement
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`on grounds of fraud and incapacity, but a state court rendered judgment in favor of
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`Casey, upholding the agreement’s validity and enforceability in 1986. [D.E. 52 at 5–
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`6; 64-15].
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`Finch tried again. In the years following the 1986 declaratory judgment, Finch
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`continued to challenge Casey’s ownership over some of the Band’s songs. To settle
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`this song dispute, Finch and Casey executed a settlement agreement in 2003 (the
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`“2003 Agreement”). [D.E. 64-19]. In 2004, Casey return to state court seeking
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`contempt sanctions against Finch for his violations of the 1986 declaratory judgment.
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`The court issued a sanction order against Finch and reiterated the validity of both
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`the 1983 Agreement and the 1986 declaratory judgment. [D.E. 64-24].
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`Fast-forward a few years and on August 30, 2012, Finch, through his then-
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`counsel Brent McBride, and pursuant to § 203(a) of the Copyright Act, served a notice
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`3
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`of termination (the “2012 Notice”) on Casey and Harrick seeking to terminate the
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`copyright grants that he allegedly made to Casey through execution of the
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`1983 Agreement. [D.E. 52 at 7; 64 at 9–10; 64-25]. The 2012 Notice contained an
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`effective termination date of October 28, 2018. [D.E. 64-25 at 12]. Casey did not
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`respond to this notice. Almost three years later, on May 7, 2015, Finch’s new lawyer,
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`well regarded entertainment attorney Richard Wolfe, sent a letter to Casey’s counsel
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`concerning the 2012 Notice and attaching a copy of the notice. [D.E. 52-10; 52-12 at
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`10–11]. This time, Casey responded to Finch’s notice in a letter drafted by his long-
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`time attorney, Franklin Zemel, on May 26, 2015. [D.E. 52-11]. Casey’s response
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`directly challenged the validity of the 2012 Notice and expressly repudiated Finch’s
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`claim of authorship over any of the ninety-nine songs, denying any significant
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`involvement by Finch in the creation of the musical compositions. Id.
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`Finch never replied to Casey’s repudiation letter and no action was taken in
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`furtherance of the 2012 Notice or in opposition to Casey’s challenge to its validity.
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`Instead, fast-forward another seven years to September 30, 2019, when Finch’s new
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`counsel, Evan Cohen, served another notice of termination (the “2019 Notice”) on
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`Casey and Harrick, wherein Finch claimed entitlement, for the second time, to
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`terminate the alleged copyright transfer of the 1983 Agreement. The 2019 Notice
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`displayed an effective date of termination of October 1, 2021. [D.E. 64-1]. Following
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`an October 1, 2021, response from Casey’s attorney that disputed, once more, the
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`validity of the termination notice, [D.E. 41-4], Finch filed this single-count lawsuit
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`4
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`seeking a declaration that he has validly exercised his termination rights under § 203
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`of the Act.
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`Based on these undisputed facts, both Casey and Finch have filed cross-
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`motions for summary judgment. As explained further below, we find that the
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`undisputed facts warrant dismissal of Finch’s claim because, as a matter of law, his
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`copyright termination action is barred the applicable statute of limitations, which
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`precludes this Court from adjudicating his claim.3 Accordingly, Defendant’s motion
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`for summary judgment [D.E. 51] is GRANTED and Plaintiff’s motion for summary
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`judgment [D.E. 63] is DENIED as moot.
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`II. APPLICABLE PRINCIPLES AND LAW
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`The court shall grant summary judgment if the movant shows that there is no
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`genuine dispute as to any material fact and the movant is entitled to judgment as a
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`matter of law:
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`A party asserting that a fact cannot be or is genuinely disputed must
`support the assertion by: (A) citing to particular parts of materials in
`the record, including depositions, documents, electronically stored
`information, affidavits or declarations, stipulations (including those
`made for purposes of the motion only), admissions, interrogatory
`answers, or other materials; or (B) showing that materials cited do not
`establish the absence or presence of a genuine dispute, or that an
`adverse party cannot produce admissible evidence to support the fact.
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`Fed. R. Civ. P. 56(c)(1). On summary judgment, the inferences to be drawn from the
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`underlying facts must be viewed in the light most favorable to the party opposing the
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`3 Because Casey is entitled to judgment as a matter of law on his statute of limitations
`defense and this defense is dispositive of the case, we do not address any of the
`remaining arguments in Defendant’s motion.
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`5
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`motion. See Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 597
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`(1986) (quoting another source).
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`At the summary judgment stage, the Court’s function is not to “weigh the
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`evidence and determine the truth of the matter but to determine whether there is a
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`genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 243 (1986).
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`In making this determination, the Court must decide which issues are material. A
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`material fact is one that might affect the outcome of the case. See id. at 248 (“Only
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`disputes over facts that might affect the outcome of the suit under the governing law
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`will properly preclude the entry of summary judgment. Factual disputes that are
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`irrelevant or unnecessary will not be counted.”). “Summary judgment will not lie if
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`the dispute about a material fact is genuine, that is, if the evidence is such that a
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`reasonable jury could return a verdict for the nonmoving party.” Id.
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`III. ANALYSIS
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`The predicate question before the Court is relatively straightforward: whether
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`Finch’s declaratory judgment action under § 203 of the Copyrights Act falls outside
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`the act’s three-year limitations period. Defendant’s motion argues that it does.
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`According to Casey, the statute of limitations on Finch’s lawsuit elapsed in May 2018,
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`which renders this lawsuit—commenced in November 2022—untimely. [D.E. 51
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`at 9]. Specifically, Casey highlights that copyright claims that turn on ownership, or
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`authorship (as opposed to infringement), accrue only once. In Finch’s case the accrual
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`point happened in May 2015, when Casey’s lawyer sent a response letter to Finch’s
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`6
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`attorney expressly invalidating the 2012 Notice of Termination and challenging
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`Finch’s claim of authorship over the ninety-nine songs. Id. at 10–11.
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`Finch, on the other hand, opposes summary judgment on Defendant’s statute
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`of limitations defense, primarily on two grounds. [D.E. 72]. First, Finch argues that
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`Casey’s statute of limitations defense is itself time-barred and, as such, cannot be
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`considered by this Court. In doing so, Plaintiff essentially asks this Court to treat
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`Casey’s Rule 8(c) affirmative defense as a counterclaim that sounds on copyright
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`ownership, as to make it subject to the Act’s three-year limitations period. Id. at 4–
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`6. Second, Finch asserts that, under Eleventh Circuit precedent, the May 2015
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`response letter that Casey sent to Finch’s lawyer was not sufficient to place Finch on
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`notice of Casey’s claim of sole authorship, which means that the statute of limitations
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`on Finch’s claim could not have started ticking in 2015. Id. at 7–9. Implicitly, Finch
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`seems to suggest that his § 203 claim could not have accrued prior to the effective
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`date of termination outlined in his 2019 Notice. If that is the case, then Casey’s
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`summary judgment premised on his statute of limitations defense cannot succeed.
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`A. Casey’s Statute of Limitations Defense is not Time-Barred
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`We start by addressing Finch’s first argument in opposition to Casey’s motion
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`for summary judgment; namely, that this Court cannot consider Casey’s Rule 8(c)
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`statute of limitations defense because this defense is itself untimely. Plaintiff asks
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`the Court to overlook the fact that his lawsuit may fall outside the time limits
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`prescribed by the Copyright Act, and instead focus on preventing Defendant from
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`asserting his statute of limitations defense because it is itself time barred. Plaintiff’s
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`convoluted argument on this score, which is devoid of much supporting authority,
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`fails to persuade us why the limitations period on his original claim has not run.
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`For starters, Plaintiff’s argument misconstrues the nature of Casey’s Rule 8
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`affirmative defense. According to Plaintiff, “[t]he gravamen of Casey’s first ground
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`for summary judgment is that Finch cannot prevail in his claim for declaratory relief
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`because the Notice of Termination is invalid on the ground that Finch is not an
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`author.” [D.E. 72 at 3]. Not so. Defendant’s first ground for summary judgment is
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`that Plaintiff failed to file suit within three years after his § 203 claim accrued,
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`rendering his November 2022 lawsuit untimely. See 17 U.S.C. § 507(b) (“No civil
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`action shall be maintained under the provisions of this title unless it is commenced
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`within three years after the claim accrued.”).
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`Yet, Plaintiff repeatedly, and confusingly, conflates the substance of Casey’s
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`response letter to the 2012 Notice—which disputed authorship—with the statute of
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`limitations defense asserted in Casey’s Answer, and then proceeds to portray Casey’s
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`defense as a claim or counterclaim that this Court should subject to the Act’s three-
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`year statute of limitations. [D.E. 72 at 4] (“[t]he question of whether Casey currently
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`has a timely ‘sole authorship’ claim is crucial”) (third emphasis added). We find no
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`basis to accept Finch’s self-serving description of Casey’s limitations defense as a
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`“claim.” Casey’s motion for summary judgment is premised on his fourth affirmative
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`defense (“Claim Barred by Statute of Limitations”), not his third one (“Not an
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`Author”), [D.E. 42 at 6], and Finch fails to cite a single analogous case supporting this
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`arbitrary reformulation of Casey’s statute of limitation argument. See id. at 4–6. As
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`noted earlier, Casey’s limitations theory is asserted in his answer to Plaintiff’s FAC
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`pursuant to Rule 8(c), and does not seek damages or any other affirmative relief from
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`Plaintiff. [D.E. 42 at 6]. That is significant. See Estate of Hogarth v. Edgar Rice
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`Burroughs, Inc., 342 F.3d 149, 163 (2d Cir. 2003) (“A defendant who is not seeking
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`any affirmative relief and who asserts a defense only to defeat a plaintiff’s claim is
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`not barred by a statute of limitations”); U.S. for Use of Bros. Builders Supply Co. v.
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`Old World Artisans, Inc., 702 F. Supp. 1561, 1569 (N.D. Ga. 1988) (stressing the
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`“common law rule that statutes of limitations do not run against pure defenses”).
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`While Plaintiff urges this Court to ignore the “general rule that a statute of
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`limitations does not bar mere defenses as distinct from counterclaims,” Everly v.
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`Everly, No. 3:17-CV-01440, 2020 WL 5642359, at *9 (M.D. Tenn. Sept. 22, 2020),
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`nothing in Finch’s brief or the available record persuasively lead us to that conclusion.
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`Indeed, the very same cases on which Plaintiff purports to rely underscore the
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`weakness of his arguments with respect to both the application of statute of
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`limitations to affirmative defenses and the accrual of a copyright ownership claims.
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`For instance, Plaintiff cites to Complex Systems, a case that dealt with a
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`copyright infringement claim where the defendant asserted a joint ownership defense
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`that was predicated on an alleged ownership interests belonging to a third, non-party
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`actor. Complex Sys., Inc. v. ABN Ambro Bank N.V., 979 F. Supp. 2d 456, 473
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`(S.D.N.Y. 2013). Besides the glaring factual differences between that case and the
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`one at hand, including the role of non-parties and the absence of a statute of
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`limitations defense, the court in Complex Systems actually rejected Finch’s theory by
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`expressly noting that if it were the non-party asserting the joint ownership defense,
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`the defense would be allowed to proceed even though the claim would not be allowed
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`if it were seeking affirmative relief. Id. at 474 (“Put another way, if IT were the
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`defendant to this [] case, it may very well be able to assert that it cannot infringe that
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`which it owns. That affirmative defense may or may not prevail, but it would be
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`allowed”); see also Scorpio Music (Black Scorpio) S.A. v. Willis, No. 11CV1557 BTM
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`RBB, 2013 WL 790940, at *3 (S.D. Cal. Mar. 4, 2013) (involving a counterclaim rather
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`than a defense, and observing that the Act’s statute of limitations bars § 203
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`termination claims “brought more than three years after plain and express
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`repudiation of the ownership claim.”).
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`This is not a case in which Casey can be deemed to be a defendant in an
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`aggressor’s posture, trying to use an affirmative defense as a sword rather than a
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`shield to disturb some long-lasting status quo between the parties. Cf. Donald Everly
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`v. Everly, 536 F. Supp. 3d 276, 283–84 (M.D. Tenn. 2021) (barring affirmative defense
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`that mirrored defendants’ ownership counterclaim, where defendants “sought to
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`topple the status quo under which [plaintiff] had been operating since 1980”). As
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`noted above, Casey has not pled counterclaims, nor is he seeking any damages or
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`affirmative relief from Finch. Moreover, the underlying facts in this case indicate
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`that it is Finch who has engaged in repeated efforts, some of which date back to the
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`1980s, to disturb or attack the existing state of affairs established by the parties
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`through execution of their 1980 and subsequent agreements. In this respect, we are
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`at a loss to see how this long and adversarial historical backdrop between the parties,
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`which according to Finch imputes to Casey unclean hands that should preclude him
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`from even asserting a statute of limitations defense, does not likewise bar Finch from
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`continuing to prosecute this stale, protracted and long-lasting dispute.
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`In sum, Plaintiff’s claim that this Court should not consider Casey’s statute of
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`limitations defense because this defense is itself time-barred, is legally unsound and
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`unpersuasive. Not only does Finch mischaracterize the nature of Case’s asserted
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`defense, but it also cherry-picks authorities that, when properly read, lend more
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`support to Casey’s arguments than to Finch’s. Accordingly, the Court finds no basis
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`for preventing Casey from asserting his statute of limitations defense. We thus must
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`address the merits of that defense based on the existing record.
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`B. Finch’s § 203 Lawsuit is Barred by the Act’s Statute of
`Limitations
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`Next, we turn to Casey’s argument that Finch’s lawsuit is barred by the Act’s
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`statute of limitations. Because the undisputed facts show that, as a matter of law,
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`Finch’s § 203 claim accrued no later than May 2015, this lawsuit is barred by the
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`Act’s three-year limitations period, and Defendant is entitled to summary judgment
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`on his statute of limitations defense.
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`The Copyright Act provides authors with termination rights, which allow them
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`to terminate “the exclusive or nonexclusive grant of a transfer or license of copyright
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`or of any right under a copyright.” 17 U.S.C. § 203(a) (providing right to terminate
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`post-1978 grants between thirty-five and forty years after the grant). Under the Act,
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`authors are thus entitled to terminate certain grants and recapture ownership in
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`their works after a period of time. § 203 provides for the effectuation of a termination
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`by service of “an advance notice in writing, signed by the number and proportion of
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`owners of termination interests required under clauses (1) and (2) of this subsection,
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`or by their duly authorized agents, upon the grantee or the grantee’s successor in
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`title.” Id. § 203(a)(4). The notice must state an effective date of termination and
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`must be served not less than two or more than ten years before that date. Id.
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`“However, regardless of the effective date, under § 203(b)(2), ‘[t]he future rights that
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`will revert upon termination of the grant become vested on the date the notice of
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`termination has been served.’” Baldwin v. EMI Feist Catalog, Inc., No. 11-81354-
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`CIV, 2012 WL 13019195, at *2 (S.D. Fla. Dec. 11, 2012) (emphasis in original).
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`Furthermore, all copyright claims are subject to a three-year statute of
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`limitations. Section 507(b) provides that “[n]o civil action shall be maintained under
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`the provisions of this title unless it is commenced within three years after the claim
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`accrued.” Claims for infringement and claims for ownership are subject to different
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`accrual standards. A claim that sounds in ownership, as in this case, “accrues only
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`once”: at the point in time when plaintiff “knew, or reasonably should have known,
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`that his ownership rights [] were being violated.” Webster v. Dean Guitars, 955 F.3d
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`1270, 1276 (11th Cir. 2020); see also Kwan v. Schlein, 634 F.3d 224, 228 (2d Cir. 2011)
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`(“An ownership claim accrues only once, when ‘a reasonably diligent plaintiff would
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`have been put on inquiry as to the existence of a right.’”); Santa-Rosa v. Combo
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`Records, 471 F.3d 224, 228 (1st Cir. 2006) (“[A] claim for declaratory judgment of
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`ownership accrues when the plaintiff ‘knew of the alleged grounds for the ownership
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`claim.’”), cert. denied, 550 U.S. 926 (2007).
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`Given this well-established principle, we are bound to agree with Casey that
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`the undisputed facts show that Finch’s lawsuit falls outside § 507(b)’s limitations
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`period. As a threshold matter, we start by noting that Plaintiff fails to affirmatively
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`dispute that Mr. Wolfe was his attorney and acted in that capacity on May 7, 2015,
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`when he sent the termination notice to Casey’s counsel. Although Plaintiff attempts
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`to suggest a dispute of material fact with regards to this attorney-client relationship,
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`any purported “dispute” on this fact would be limited to Plaintiff’s alleged lack of
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`recollection of Mr. Wolfe’s retention during his deposition. [D.E. 52-1 at 24–27] (“Q.
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`Okay. And do you know another lawyer named Richard Wolfe? A. Vaguely. Those
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`were not good times for me”; “Q. Okay. But you don’t remember hiring Richard Wolfe
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`to act as you lawyer? A. Probably I don’t remember, because that whole thing was
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`ineffective and, yeah, I don’t -- yeah, I don’t know how to answer you correctly[.]”).
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`This non-denial denial is plainly insufficient to create a dispute of fact, particularly
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`in light of the fact that other parts of the uncontroverted record affirmatively
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`establish that Mr. Wolfe was indeed Finch’s attorney. [D.E. 52-10 at 2] (“We have
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`been asked to represent Richard Finch in connection with his 17 U.S.C. § 203
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`termination rights. . . . Please address all further communications relating to Mr.
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`Finch to me.”); [D.E. 52-12 at 11] (“Q. I appreciate that. But when you wrote this
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`letter, was it your understanding you were also representing Mr. Finch? A. Yes.”);
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`[D.E. 64-8 at 174–175] (conceding that “Mr. Zemel had sent a letter back to Mr.
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`Finch’s attorney, saying ‘you know what?’ Finch was never an author.”); [D.E. 52-12
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`at 6] (“MR. WEISS: We’re going to be asserting the attorney/client privilege on any
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`communications that are taking place -- that took place between Richard, and Finch,
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`and his attorneys. MR. ZEMEL: That includes Richard Wolfe as one of his attorneys?
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`MR. WEISS: That is correct.”).
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`It is likewise undisputed that Casey’s May 26, 2015, response to Finch’s
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`termination notice clearly and expressly disputed Finch’s authorship claim, as well
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`as his corollary termination rights under § 203. [D.E. 71 at 3]. In pertinent part,
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`Casey’s repose letter stated the following:
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`At no time was Finch an “author” of the music under the Copyright Act.
`The U.S. Supreme Court defines “author” as “the party who actually
`created the work, that is, the person who translates an idea into fixed,
`tangible expression entitled to copyright protection.” Finch did not
`actually create the songs Casey wrote for KCSB and Finch did not
`contribute any significant copyrightable material to those songs.
`Accordingly, Finch would have the burden of proof of establishing his
`status as an “author”, not just one with whom Casey shared credit. He
`therefore has no termination rights under Section 203(a), as explained
`below.
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`[D.E. 52-11 at 2].
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`According to Finch, however, these undisputed facts were not enough to trigger
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`the statute of limitations on his termination claim back in May 2015. Purporting to
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`rely on the Eleventh Circuit’s holding in Webster, Finch claims that Casey cannot
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`“establish that when his lawyer sent that letter [to Mr. Wolfe] in 2015 ‘repudiating’
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`Finch’s co-authorship, a reasonable person in Finch’s position would have ‘learned
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`that his rights were being violated’ as required under the Webster accrual approach.’”
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`[D.E. 72 at 7–8]. This too is plainly incorrect as Finch’s reliance on Webster is utterly
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`misplaced for several reasons.
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`Case 1:22-cv-20144-DPG Document 103 Entered on FLSD Docket 02/07/2023 Page 15 of 18
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`For starters, Finch fails to understand the court’s holding. Finch suggests that
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`under Webster a written and express repudiation of one’s copyright ownership, as the
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`one in this case, will not suffice to trigger accrual of an ownership derivate claim for
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`statute of limitations purposes. This follows from Finch’s confused reading of the
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`court’s discussion about the two accrual approaches applied to ownership claims by
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`different Circuit Courts. See Webster, 955 F.3d at 1276 (observing that the Sixth and
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`Nineth Circuits apply the “repudiation test”, whereas the First, Second, Fifth, and
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`Seventh apply what is known as the “discovery rule”). Although the Eleventh Circuit
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`in Webster adopted the discovery rule rather than the repudiation approach for
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`determining accrual in the ownership context, this does not mean, as Finch suggests,
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`that direct statements from one party to the other claiming exclusive authorship—
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`and, hence, repudiating ownership—cannot constitute a valid form of notice for the
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`purposes of § 507(b) accrual.4 To the contrary, as Webster itself made clear, a
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`communication expressly repudiating plaintiff’s ownership claim can, and does,
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`sufficed to trigger accrual of a copyright ownership derivate claim:
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`Webster had reason to know that his alleged ownership rights were
`being violated as early as 2004, when he first learned that Dean was
`producing DFH reissues. But if that were not sufficient to put him on
`notice that his rights were being violated, Rubinson’s email in 2007
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`4 Without exploring what the “repudiation rule” means, Finch improperly conflates
`this with any means of repudiation, including direct and express statements of
`exclusive authorship from one party to the other. [D.E. 72 at 7–8]. However, to say
`that Webster forecloses all forms of repudiation in general from triggering accrual of
`an ownership related claim completely distorts the ruling. Instead, it is more
`accurate to say that in bypassing the “repudiation rule”, the court simply steered
`away from less straightforward methods of repudiation that have been deemed
`sufficient under that rule in other jurisdictions. See, e.g., Aalmuhammed v. Lee, 202
`F.3d 1227, 1231 (9th Cir. 2000) (authorship sufficiently repudiated when movie
`credits listed plaintiff far below the more prominent names).
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`Case 1:22-cv-20144-DPG Document 103 Entered on FLSD Docket 02/07/2023 Page 16 of 18
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`stating that “the consensus concerning [the lightning storm graphic] is
`that [Abbott’s] estate is the legal owner of it” was certainly sufficient.
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`Webster, 955 F.3d at 1276 (finding that ownership claim was barred by the statute
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`of limitations, and reaffirming grant of summary judgment in favor of defendant)
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`(emphasis added).
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`As in Webster, the record here indicates that Casey sent a letter in response to
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`Finch’s notice of termination to Finch’s attorney in May 2015, and that such response
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`letter expressly and directly called into question Finch’s claim of authorship over the
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`songs, as well as his right to effectuate termination under § 203. That was “certainly
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`sufficient” to place Finch on notice that Casey was affirmatively challenging his
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`authorship and termination rights over these songs. See id.;5 see also Caracol
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`Television, S.A. v. Telemundo Television Studios, LLC, No. 18-CV-23443, 2021 WL
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`243695, at *6 n.7 (S.D. Fla. Jan. 25, 2021) (Gayles, J.), aff'd, No. 21-10515, 2022 WL
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`202546 (11th Cir. Jan. 24, 2022) (“it is likely that Caracol’s copyright claims [] are
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`barred by the Copyright Act’s three-year statute of limitations. See 17 U.S.C. § 507(b).
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`Caracol learned that Telemundo claimed complete ownership in the copyright of the
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`Subsequent Seasons and Spinoff in August 2014, [via letter sent to plaintiff’s
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`attorney, which repudiated plaintiff’s ownership claim], but did not file this action
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`until August 23, 2018.”).
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`5 Something that Plaintiff seemed to concede in his original complaint, but omitted
`from his FAC. See [D.E. 1 ¶ 33] (observing that with their responses “Casey and
`Harrick have stated their clear intent to not honor the Notice served by Finch,
`regarding any works, and Casey and Harrick have thereby created an actual and
`immediate disagreement with Finch”) (emphasis added).
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`Case 1:22-cv-20144-DPG Document 103 Entered on FLSD Docket 02/07/2023 Page 17 of 18
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`Turning to Finch’s implied suggestion that an action for termination rights
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`under § 203 cannot accrue prior to the notice’s effective date of termination, our
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`review of the law shows otherwise. Indeed, this argument was expressly rejected by
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`this district court in Baldwin v. EMI Feist Catalog, Inc., No. 11-81354-CIV, 2012 WL
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`13019195, at *1 (S.D. Fla. Dec. 11, 2012). In Baldwin, the court refused to grant a
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`motion to dismiss for lack of ripeness in a lawsuit seeking declaratory judgment
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`under § 203. The defendant in Baldwin argued that plaintiff’s declaratory action was
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`subject to dismissal because “claims based on a notice of termination under § 203 do
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`not ‘accrue’ until the effective date of the notice,” and, since the effective date of the
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`relevant notices had not yet passed, plaintiff did not have an actionable cause of
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`action. Id. at *2. The court rejected defendant’s argument, and found that as soon as
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`defendant repudiated plaintiff’s notice of termination in writing, plaintiff was
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`provided with an actionable lawsuit regarding the validity of his notices, and this
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`lawsuit was one the court had jurisdiction to adjudicate:
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`By purporting to serve a valid § 203 notice upon Defendant, which notice
`Defendant has repudiated, Plaintiffs have created a controversy as to
`whether “[t]he future rights that will revert upon termination of the
`grant [have] become vested,” as provided by the statute. 17 U.S.C. §
`203(b)(2). This controversy is therefore ripe and non-speculative, and
`the Court has jurisdiction to adjudicate it.
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`Id. at *3.
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`Based on these precedents and the undisputed facts, it is evident that Finch’s
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`claim for termination under § 203 accrued in May 2015, when Casey sent a response
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`letter to Finch’s lawyer expressly challenging Finch’s claim of authorship over all
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`ninety-nine songs,