`
`
`
`
`
`No. 23-430
`
`In the
`Supreme Court of the United States
`
`RICHARD R. FINCH,
` Petitioner,
`v.
`HARRY WAYNE CASEY AND
`HARRICK MUSIC, INC.,
` Respondents.
`
`
`
`
`On Petition for a Writ of Certiorari to the United
`States Court of Appeals for the Eleventh Circuit
`
`BRIEF IN OPPOSITION
`
`
`
`
`
`
`
`
`
`
`
`
`FRANKLIN L. ZEMEL
` Counsel of Record
`SAUL EWING LLP
`200 East Las Olas Boulevard
`Suite 1000
`Fort Lauderdale, Florida 33301
`954.713.7600
`franklin.zemel@saul.com
`Counsel for Respondents
`
`
`
`
`Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001
`
`
`
`
`
`
`
`i
`
`
`
`QUESTION PRESENTED
`the
`The Petitioner’s1 characterization of
`question presented (i.e., the application of the
`“discovery accrual rule”) was not raised, discussed, or
`applied
`in any of the underlying proceedings.
`Contrary to the Petitioner’s statement, the issue in the
`proceedings below was simple and straightforward:
`Whether Casey’s statute of limitations defense was
`itself time-barred. The per curium decision below is
`unexceptional and, contrary to the Petitioner’s
`contention, does not present a question of “national
`significance” or contravene the purposes of Section
`203 of the Copyright Act. Indeed, the Eleventh Circuit
`referred to the Petitioner’s appeal as “push[ing] the
`boundary” of frivolousness. (Pet. App. A, 4a).
`
`
`
`
`
`
`
`
`
`
`1 The Petitioner, Richard Finch, will be referred to herein as the
`“Petitioner” or “Finch.” The Respondent, Harry Wayne Casey,
`will be referred to as “Casey.” The Respondent, Harrick Music,
`Inc., will be referred to as “Harrick.”
`
`
`
`
`
`
`
`ii
`
`
`
`RULE 29.6 STATEMENT
`There is no parent corporation of Respondent,
`Harrick Music, Inc., nor is there any publicly held
`corporation or entity owning 10% or more of Harrick.
`
`
`
`
`
`
`
`
`
`
`
`
`
`iii
`
`TABLE OF CONTENTS
`QUESTION PRESENTED .......................................... i
`RULE 29.6 STATEMENT .......................................... ii
`STATUTORY PROVISIONS .......................................1
`INTRODUCTION ........................................................1
`STATEMENT OF THE CASE ....................................3
`REASONS FOR DENYING THE PETITION ..........12
`THE PETITIONER SEEKS REVIEW ON A
`A.
`QUESTION NOT PRESENTED BY THIS
`CASE ............................................................... 12
`
`
`B.
`
`
`
`C.
`
`THE DECISION BELOW IS A ROUTINE
`APPLICATION OF WELL-SETTLED
`LAW ................................................................. 14
`
`THE PETITION DOES NOT RAISE ANY
`ISSUES THAT WARRANT THIS COURT’S
`REVIEW ..........................................................17
`1.
`
`The Petitioner’s Claim of Alleged
`“Error” in the Holdings Below is Not
`a Compelling Reason
`to Grant
`Certiorari Review ................................. 17
`
`2.
`
`the
`(and
`The Eleventh Circuit
`District Court) Properly Applied
`Settled Law ........................................... 18
`CONCLUSION .......................................................... 21
`
`
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`
`
`
`
`
`iv
`
`TABLE OF AUTHORITIES
`
`CASES
`Estate of Hogarth v. Edgar Rice Burroughs, Inc.,
`342 F.3d 149 (2d Cir. 2003) ...................................15
`Garza v. Everly,
`59 F.4th 876 (6th Cir 2023)....................... 18, 19, 20
`Nealy v. Warner Chappel Music, Inc.,
`60 F.4th 1325 (11th Cir. 2023), cert. granted,
`-- S. Ct. --, 2023 WL 6319656 (Mem) (September
`29, 2023) .......................................................... 13, 14
`United States v. W. Pac. R. Co.,
`352 U.S. 59 (1956) ................................................. 14
`STATUTES
`17 U.S.C. § 203 ................ 1, 2, 9, 10, 12, 13, 15, 16, 17
`17 U.S.C. § 410(c) ........................................................ 1
`17 U.S.C. § 507(b) ........................................ 2, 8, 10, 15
`
`RULES
`Sup. Ct. R. 10 ............................................. 3, 12, 17, 21
`
`OTHER AUTHORITIES
`S. Shapiro, K. Geller, T. Bishop, E. Hartnett, & D.
`Himmelfarb, Supreme Court Practice (10th ed.
`2013) ................................................................ 17, 18
`
`
`
`
`
`
`
`
`
`1
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`
`
`STATUTORY PROVISIONS
`Casey disputes that 17 U.S.C. § 410(c) is
`
`material or relevant in any way to the issue decided
`below.
`
`INTRODUCTION
`This case is about the Petitioner’s effort to
`circumvent his own choice to wait more than six years
`after Casey expressly, in writing, repudiated the
`Petitioner’s assertion that he is an author of any of the
`99 songs in the KC and the Sunshine Band music
`catalog. Casey was fully within his rights to
`lawsuit, which
`defensively assert that Finch’s
`required a determination that the Petitioner is, in fact,
`an “author,” was barred by the applicable three-year
`statute of limitations. The decisions below are based
`on the clear and well-established general rule of law
`that the statute of limitations does not apply to a
`defense.
`In the Trial Court below, the Petitioner, Finch,
`brought a single claim for Declaratory Relief in which
`the Petitioner asserts that he is a “co-author” of the
`entire “KC and the Sunshine Band” music catalog.
`The Petitioner contends that because he is allegedly
`an author, he is entitled to invoke, and has in fact
`invoked, “termination rights” under Section 203 of the
`Copyright Act, which allows an author to terminate a
`legacy grant of copyright.
`Section 203 of the Copyright Act permits an
`(or an author’s heirs under certain
`author
`circumstances) to terminate grants of copyright
`
`
`
`
`
`
`
`2
`
`
`assignments that were executed by the author on or
`after January 1, 1978, and reclaim the rights that
`were transferred. See 17 U.S.C. § 203(a).2 In a
`unanimous per curium decision, the Eleventh Circuit
`affirmed the Trial Court’s conclusion that the
`Petitioner’s claim, which as a condition precedent
`must be predicated on his status as an author, is
`barred by the three-year statute of limitations set
`forth in 17 U.S.C. § 507(b), which was triggered more
`than six years prior to the filing of this lawsuit when
`Casey expressly repudiated the Petitioner’s claim of
`co-authorship to any of the 99 songs in the KC and the
`Sunshine Band music catalog.
`Certiorari review of the Eleventh Circuit’s
`decision should be denied for three reasons. First, the
`question on which the Petitioner seeks review is not
`presented here because neither the Eleventh Circuit
`nor the District Court applied the “discovery accrual
`rule.” Instead, the courts below correctly determined
`that the Petitioners’ claim accrued upon Casey’s
`express repudiation of Finch’s assertion of authorship
`on May 26, 2015. Second, the decisions below involve
`a routine application of well-established law and do
`not present a question of “national significance” or
`“significant precedential value,” nor is there any
`
`2 More specifically, Section 203 states:
`(a) Conditions for Termination.—In the case of
`any work other than a work made for hire, the
`exclusive or nonexclusive grant of a transfer or
`license of copyright or of any right under a
`copyright, executed by the author on or after
`January 1, 1978, otherwise than by will, is
`subject to termination . . . .
`
`
`
`
`
`
`
`3
`
`
`conflict with a decision of this Court or of any Court of
`Appeals. As occurred below, the Petitioner provides
`no legal authority or argument that justifies changing
`the general rule that a defendant who is not seeking
`any affirmative relief, and who asserts a defense only
`to defeat a plaintiff's claim, is not barred by a statute
`of limitations. And third, the Petitioner is, at bottom,
`simply arguing that the lower courts misapplied a
`settled rule or case law. Supreme Court Rule 10
`expressly provides that “error-correction” is rarely a
`proper ground for certiorari review.
`
`STATEMENT OF THE CASE
`Casey is the founder, leader, and “KC” of the
`world-renowned musical group “KC & the Sunshine
`Band.” (11th Cir. App., 110). Casey got his start in
`the music industry in the early 1970’s while working
`at the then-famous TK Studios in Miami under
`producer Henry Stone and his business partner, Steve
`Alaimo. (11th Cir. App., 127 & 11th Cir. Supp. App.,
`90-92). A few years later, Casey was introduced to the
`Petitioner, Finch, a sound engineer, by Willie Clarke,
`a TK Studios producer and songwriter. (Id.).
`
`Casey Wrote All the Music & Lyrics
`By the time Casey was introduced to the
`Petitioner, Casey had already started what was then
`known as “KC and the Sunshine Junkanoo Band”
`(which later became “KC & the Sunshine Band”) and
`he had already written several hit tracks. (11th Cir.
`App., 127 & 11th Cir. Supp. App., 95-97). The
`Petitioner eventually joined primarily as a sound
`engineer. (11th Cir. App., 111, 127-28). At all times,
`
`
`
`
`
`
`
`4
`
`
`Casey was solely responsible for writing the music and
`lyrics for each of the 99 songs in the KC & the
`Sunshine Band catalog (the “Compositions”), typically
`at his piano at home. (Id., 898).
`For his part, The Petitioner did not create any
`of the Compositions, nor did he actually contribute any
`significant copyrightable material to any of the
`Compositions. At his deposition, the Petitioner
`admitted that he had nothing to do with several of the
`songs for which he was gifted writer credit and as for
`the others, he could not identify any copyrightable
`contribution to any of the songs, including not a single
`lyric or musical note. (11th Cir. App., 896-97, 920-21
`& 11th Cir. Supp. App., 229-33, 236-38). In many
`instances, the songs were already written before the
`Petitioner even became
`involved
`in the sound
`production. (11th Cir. App., 920).
`
`Casey Gifted The Petitioner Co-Author Status
`In his deposition, Casey explained that the
`Petitioner was listed as a “co-author” on copyright
`registrations, record
`labels, and elsewhere, not
`because of any copyrightable contribution to the
`works, but because Casey “gifted” the Petitioner co-
`authorship status due
`to
`their
`then-personal
`relationship. (11th Cir. App., 898-99, 924 & 11th Cir.
`Supp. App., 350) (e.g., “Sir, I was in a relationship with
`him, and, you know, because I was in a relationship
`with him, I didn't object to those things”). As
`mentioned above, even the Petitioner conceded that
`Casey “gifted” him co-writer status as to at least some
`songs, notwithstanding the Petitioner’s effort to claim
`
`
`
`
`
`
`
`5
`
`
`co-authorship of songs. (11th Cir. App., 921 & 11th
`Cir. Supp. App., 235-36).
`
`Neither Casey Nor The Petitioner Owned Any
`Copyrights
`Between the mid-1970s and the early 1980s,
`Casey and
`the Petitioner
`executed
`several
`agreements, including Exclusive Writer’s Contracts
`with Sherlyn Publishing Co. (“Sherlyn,” now known as
`Sony/EMI), dozens of Single Song Agreements
`(“SSAs”) with Sherlyn, which granted to Sherlyn all
`right, title and interest for each song written and
`recorded by KC & the Sunshine Band, and an
`“Amendment
`to
`the Exclusive
`Songwriter
`Agreements” with
`Sherlyn
`(hereafter,
`the
`“Amendment”), by which all new Compositions going
`forward from June 1, 1976, would be co-owned 50/50
`by Sherlyn and Harrick, an entity formed and co-
`owned equally by the Petitioner and Casey. (Pet. App.
`B, 6a; 11th Cir. App., 18, 128-29, 921-23). Put simply,
`neither Casey nor the Petitioner owned any copyrights
`to any songs in their individual capacities.
`
`The 1983 Property Division Agreement
`By 1983, Casey and the Petitioner formally
`severed their business dealings by way of that certain
`Property Division Agreement (hereafter, the “1983
`Property Division Agreement”). (Pet. App. B, 7a, 11th
`Cir. App., 18-19, 130-31). The 1983 Property Division
`Agreement included as an exhibit, among others, an
`“Intangibles Assignments” document, in which the
`Petitioner quitclaimed to Casey rights he may have
`had at the time, if any, to the Compositions. (Pet. App.
`
`
`
`
`
`
`
`6
`
`
`B, 7a). The Intangibles Assignment makes no
`representation or warranty of any kind that the
`Petitioner actually owned any copyrights. (11th Cir.
`App, 926).
`the
`of
`execution
`soon after
`However,
`agreement, the Petitioner claimed that the 1983
`Property Division Agreement was procured by fraud,
`collusion, or that the Petitioner was incompetent
`when he executed the document. (Pet. App. B, 7a,
`11th Cir. App., 19, 926-27). The Petitioner did not
`claim that he was an “author” and the Petitioner’s lack
`of authorship in the Compositions was not an issue in
`the litigation. (11th Cir. App., 926-27). The state
`court rendered judgment in favor of Casey in 1986,
`upholding the validity and enforceability of the 1983
`Property Division Agreement. (Id., 131-32). The court
`also permanently enjoined the Petitioner
`from
`interfering in the payment of any royalties due and
`owing to Casey (the “1986 Injunction”). (Id., 132).
`In 2004, Casey was forced to seek contempt
`sanctions against the Petitioner for violating the 1986
`Injunction. (Pet. App. B, 8a, 11th Cir. App., 19, 132).
`At the conclusion of the contempt proceedings, the
`state court entered an Order finding that the
`Petitioner, Finch, had a) willfully violated the 1986
`Injunction, b) that the 1983 Property Division
`Agreement was valid and binding, and c) that “FINCH
`transferred 100% of the entirety of his royalty
`interests in the complete ‘K.C. Catalog’ . . . prior to
`the date of execution of the Property Division
`Agreement.” (11th Cir. App., 132-33 & 11th Cir. Supp.
`App., 270-75 ) (emphasis added). As such, the 1983
`
`
`
`
`
`
`
`7
`
`
`Property Division Agreement, which the Petitioner
`sought to terminate, did not transfer any rights at all
`– the Petitioner had previously assigned or granted all
`of his copyrights to third parties well before 1983, and
`therefore owned nothing to grant or transfer as part of
`the 1983 Property Division Agreement and its related
`Intangibles Assignment. The Petitioner’s entire claim
`rests on
`the demonstrable
`fiction
`(previously
`adjudicated against him in 2004) that the 1983
`Intangibles Assignment constitutes a “grant” of his
`rights for purposes of Section 203 of the Copyright Act.
`However, this case was resolved solely on the basis
`that the Petitioner’s lawsuit against Casey was filed
`almost 7 years after the cause of action allegedly
`accrued, and almost 4 years after the applicable
`statute of limitations had long-since expired.
`
`The Express Repudiation
`On August 30, 2012, the Petitioner, through his
`then-authorized agent, Brent McBride, attempted to
`serve a Notice of Termination pursuant to Section 203
`of the Copyright Act on Harrick (but not Casey),
`seeking to terminate copyright grants the Petitioner
`claims he made to Casey
`in the Intangibles
`Assignment as part of the larger 1983 Property
`Division Agreement
`(the
`“2012 Notice
`of
`Termination”). (Pet App. B, 8a, 11th Cir. App., 133).
`Almost three years later, on May 7, 2015, Richard
`Wolfe, Esq., the Petitioner’s then-counsel, sent a letter
`to Casey’s General Counsel concerning the 2012
`Notice of Termination and included a copy of the
`Notice. (Pet. App. B, 8a, 11th Cir. App., 133 & 11th
`Cir. Supp. App., 276-88).
`
`
`
`
`
`
`
`8
`
`
`
`Casey and Harrick, through their counsel,
`Franklin Zemel, Esq.,
`responded
`to Wolfe’s
`correspondence on May 26, 2015, expressly
`repudiating the Petitioner’s claim of authorship over
`any of the Compositions:
`
`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 a fixed, tangible expression
`entitled to copyright protection. Finch
`did not actually create the songs Casey
`wrote for [K.C. & the Sunshine Band]
`and Finch did not contribute any
`significant copyrightable material to
`those songs. Accordingly, Finch would
`have the burden of proof to establish his
`status as an “author”, not just one with
`whom Casey shared credit. He therefore
`has no termination rights under Section
`203(a) . . .
`(the 2015 Repudiation Letter”) (emphasis added).
`(Pet. App. A, 2a, Pet App. B, 8a, 11th Cir. App., 134,
`859-61). The Petitioner never replied to the 2015
`Repudiation Letter nor did he take any action in
`opposition to Casey’s express repudiation of Finch’s
`claim of authorship within the applicable three-year
`statute of limitations. (Pet. App. B, 8a, 11th Cir. App.,
`20; see also 17 U.S.C. § 507(b) “No civil action shall be
`maintained under the provisions of this title unless it
`
`
`
`
`
`
`
`9
`
`
`is commenced within three years after the claim
`accrued”).
`
`The 2019 Notice of Termination and the
`Proceedings Below
`Well after the expiration of the applicable
`three-year statute of limitations, on September 30,
`2019, the Petitioner served yet another Notice of
`Termination (the “2019 Notice of Termination”) upon
`EMI, Casey, and Harrick seeking to once again
`terminate the Petitioner’s alleged grants or transfers
`in the 1983 Property Division Agreement. (Pet. App.
`B, 9a, 11th Cir. App. 94, 135).
`Thereafter, on or about October 8, 2021, and
`notwithstanding the two State Court permanent
`injunctions, the Petitioner sued Sony/EMI Music, but
`not Casey, in Federal Court in California in order to
`force Sony/EMI Music to pay 50% of Casey’s royalties
`to the Petitioner. See Richard R. Finch v. EMI
`Consortium Songs, Inc., at al., United States District
`Court for the Central District of California Case No.:
`2:21-cv-09032. Some months later, the Petitioner
`voluntarily dismissed the California lawsuit, re-filing
`his case in the Southern District of Florida on January
`11, 2022, seeking a declaration that he validly
`exercised his termination rights under Section 203 of
`the Copyright Act.3 (Pet. App. A, 2a, Pet App. B, 6a).
`The action was filed almost seven years after the
`2015 Repudiation Letter.
`
`
`3 EMI/Sony was shortly thereafter voluntarily dismissed,
`leaving Casey and Harrick as sole defendants.
`
`
`
`
`
`
`
`10
`
`
`
`On May 9, 2022, the Respondents, Casey and
`Harrick, filed their Answer and Affirmative Defenses,
`asserting multiple defenses including that Petitioner’s
`claim was barred by the applicable three-year statute
`of limitations set forth in 17 U.S.C. § 507(b). (Pet App.
`A., 2a).
`Both the Petitioner and the Respondents filed
`competing Motions for Summary Judgment. (11th
`Cir. App., 109-26, 138-62). In their Motion for
`Summary Judgment, Casey and Harrick argued,
`among other things, that the statute of limitations for
`the Petitioner’s Declaratory Judgment
`lawsuit
`accrued in May 2015 when Casey’s lawyer sent the
`2015 Repudiation Letter to the Petitioner’s attorney
`expressly repudiating the Petitioner’s claim of
`authorship of the Compositions. (Pet. App. B, 11a).
`The Petitioner, on the other hand, opposed summary
`judgment on the ground that Casey’s statute of
`limitations defense was itself time-barred. (Id., 8b).
`In other words, the Petitioner argued that Casey and
`Harrick should be precluded from defending the
`Petitioner’s lawsuit.
`The District Court granted summary judgment
`in favor of Casey and Harrick and against the
`Petitioner, Finch, concluding, as a matter of law, that
`the Petitioner’s lawsuit was barred by the statute of
`limitations and dismissing the case with prejudice.
`(Pet. App. A, 2a, Pet App. B, 24a). In granting
`summary judgment, the District Court found that “it
`is evident that Finch’s claim for termination under
`§ 203 accrued in May 2015, when Casey sent a
`response
`letter
`to Finch’s
`lawyer
`expressly
`
`
`
`
`
`
`
`11
`
`
`challenging Finch’s claim of authorship over all
`ninety-nine songs, as well as his corollary rights to
`termination.” (Pet. App. B, 24a).
`On appeal, the Eleventh Circuit described the
`issue to be decided as follows: “Finch raises one
`narrow issue on appeal: whether Casey could raise the
`statute of limitations as a defense.” (Pet. App. A, 3a).
`In an unanimous per curium decision, the Eleventh
`Circuit affirmed the lower court, holding that “[a]n
`express assertion of sole authorship or ownership –
`like Casey’s letter – triggers the accrual of an
`ownership claim.” (Id.) (emphasis added). In other
`words, the Eleventh Circuit’s decision was not based
`in anyway on the “discovery accrual rule” nor was the
`discovery accrual rule at issue. The Eleventh Circuit
`also rejected the Petitioner’s effort to portray Casey’s
`affirmative defense as a “disguised counterclaim” in
`which Casey seeks a declaration that he is the sole
`author of the KC and the Sunshine Band catalog:
`“Finch attempts
`to paint Casey’s
`statute-of-
`limitations defense as a time-barred authorship
`counterclaim – limited by the same three-year statute
`of limitations that hinders Finch. * * * Casey does not
`seek any affirmative relief, nor does he attempt to
`dodge a statute of limitations. If anything – ironically
`– Finch is the one ‘packag[ing]’ claims and defenses to
`get around a statute of limitations. Casey raised an
`affirmative defense distinct from any authorship
`claim.” (Id.).
`
`
`
`
`
`
`
`
`
`
`
`12
`
`
`
`REASONS FOR DENYING THE PETITION
`As explained in greater detail below, the
`decision of the Eleventh Circuit does not conflict with
`a decision of this Court or any Court of Appeals, and
`does not implicate a federal question that has not been
`decided by this Court. The Eleventh Circuit’s decision
`is supported by a well-established principle of law and
`case precedent. Moreover, this is surely not a case
`appropriate for this Court’s review and accordingly,
`the Petitioners have not carried their burden of
`demonstrating any “compelling reasons” for the
`Petition to be granted. See Sup. Ct. R. 10.
`
`A.
`
`THE PETITIONER SEEKS REVIEW ON A
`QUESTION NOT PRESENTED BY THIS
`CASE.
`The Petitioner seeks review on an entirely
`hypothetical question of whether an “assertion of sole
`authorship status by one co-author may, under the
`discovery accrual rule, form the basis for a statute of
`limitations defense” to a claim for declaratory relief
`under 17 U.S.C. § 203, arguing, inter alia, that the
`discovery accrual rule was “misapplied” and that the
`“discovery accrual rule should not be applied under
`the circumstances.” (Pet., i, 12, 14).
`But neither the District Court nor the Eleventh
`Circuit invoked the “discovery accrual rule” or
`considered it as part of their respective rulings. To the
`contrary, this case involves the straight-forward
`application of the statute of limitations as an
`affirmative defense based on Casey’s express
`repudiation of the Petitioner’s assertion that he is an
`
`
`
`
`
`
`
`13
`
`
`“author” (a condition precedent to a valid termination
`under Section 203 of the Copyright Act) in Casey’s
`May 26, 2015 letter to the Petitioner’s counsel, which
`plainly stated “[a]t no time was Finch an ‘author’ of
`the music under the Copyright Act.” As the Eleventh
`Circuit explained, the sole question decided by the
`appellate court was “whether Casey could raise the
`statute of limitations as a defense.” (Pet. App. A, 3a
`(emphasis added)).
`Rather than apply the “discovery accrual rule”
`as the Petitioner contends, the Eleventh Circuit
`correctly held that the Petitioner’s claim accrued upon
`Casey’s express repudiation: “[a]n express assertion
`of sole authorship – like Casey’s letter – triggers the
`accrual of an ownership claim . . . the clock began to
`run on Finch’s § 203 claim when Casey expressly
`repudiated Finch’s authorship in May 2015.” (Pet.
`App., 3a (emphasis added)). Similarly, the District
`Court found that “Finch’s claim for termination under
`§ 203 accrued in May 2015 when Casey sent a
`response
`letter
`to Finch’s
`lawyer expressly
`challenging Finch’s claim of authorship over all
`ninety-nine songs, as well as his corollary righty to
`termination.” (Pet. App., 24a (emphasis added)).
`The Petitioner’s attempt to manufacture a
`“cert-worthy” legal issue by referencing this Court’s
`recent decision to grant a petition for writ of certiorari
`in Nealy v. Warner Chappel Music, Inc., 60 F.4th 1325
`(11th Cir. 2023), cert. granted, -- S. Ct. --, 2023 WL
`6319656 (Mem) (September 29, 2023), is grossly
`misplaced. Nealy involves the discovery accrual rule,
`which, as discussed above, is not at issue here.
`
`
`
`
`
`
`
`14
`
`
`Moreover, the limited question on review before this
`Court in Nealy is whether a copyright plaintiff can
`recover infringement damages for acts that allegedly
`occurred more than three years before the filing of the
`lawsuit, which is entirely unrelated to any issue in
`this case.
`Furthermore, the Eleventh Circuit’s decision in
`Nealy conflicts with a decision of the Second Circuit, a
`fact conceded by the respondents in their opposition
`briefing, making certiorari review appropriate in that
`case. No such conflict has been identified by the
`Petitioner here. Nor has the Petitioner explained why
`this case is exceptionally important and warrants
`review by this Court – a failure we will address in
`greater detail below. In short, the Petitioner’s
`argument that certiorari review is appropriate for this
`case in light of Nealy is based on nothing more than
`each case touches generally on the statute of
`limitations as a principle of law regardless of the
`specific question involved. That is not a “compelling
`reason” for his Petition to be granted.
`
`THE DECISION BELOW IS A ROUTINE
`APPLICATION OF WELL-SETTLED LAW.
`
`B.
`
`
`
`This case does not present a question of
`“national significance” as the Petitioner claims. To the
`contrary, the decision of the Eleventh Circuit (and the
`District Court before it) is an unexceptional, case-
`specific application of the well-settled general rule
`that the statute of limitations cannot be used to cut off
`consideration of a defense. See United States v.
`W. Pac. R. Co., 352 U.S. 59, 72 (1956). This general
`
`
`
`
`
`
`
`15
`
`
`rule applies equally in the copyright context, including
`a Section 203 termination claim, as well as claims
`involving copyright ownership or authorship. See 17
`U.S.C. § 507(b) (providing that a copyright claim must
`be “commenced within three years after the claim
`accrued”); Estate of Hogarth v. Edgar Rice Burroughs,
`Inc., 342 F.3d 149, 163 (2d Cir. 2003) (“A defendant
`who is not seeking any affirmative relief and who
`asserts a defense only to defeat a plaintiff's claim is
`not barred by a statute of limitations”).
`the same
`Here,
`the Petitioner
`repeats
`misdirection he attempted in the lower courts of
`falsely portraying Casey’s defense that the Petitioner
`is time-barred from asserting he is an “author” as,
`instead, an affirmative claim for relief in which Casey
`is seeking a declaration that he is the sole author of
`the KC & the Sunshine Band catalog. (See, e.g., Pet.,
`at i, setting forth the question presented as “[w]hether
`a time-barred assertion of sole authorship status . . .”).
`But this argument – as highlighted below – was
`rightfully rejected by the Eleventh Circuit and the
`District Court, both of whom
`reached
`the
`unremarkable conclusion that a defendant who is not
`seeking any affirmative relief and who asserts a
`defense only to defeat a plaintiff's claim is not barred
`by a statute of limitations.
`As the District Court correctly found, the
`Petitioner “proceeds to portray Casey’s defense as a
`claim or counterclaim that this [District] Court should
`subject
`to
`the Act’s
`three-year
`statute
`of
`limitations . . .
`[w]e
`find no basis
`to accept
`[Petitioner’s] self-serving description of Casey’s
`
`
`
`
`
`
`
`16
`
`
`limitations defense as a ‘claim.’ *** This is not a case
`in which Casey can be deemed to be a defendant in an
`aggressor’s posture, trying to use an affirmative
`defense as a sword rather than a shield to disturb
`some long-lasting status quo between the parties . . .
`Casey had not pled counterclaims, nor is he seeking
`any affirmative relief from [Petitioner].” (Pet. App. B,
`13a, 14a). On appeal, the Eleventh Circuit affirmed,
`holding that the “[Petitioner] attempts to paint
`Casey’s statute-of-limitations defense as a time-
`barred authorship counterclaim . . . [but] Casey does
`not seek any affirmative relief, nor does he attempt to
`dodge a statute of limitations. If anything – ironically
`– [Petitioner] is the one ‘packag[ing] claims and
`defenses to get around the statute of limitations.”
`(Pet. App. A, 3a, 4a).
`The Petitioner’s contention that the Eleventh
`Circuit’s decision “nullifies” the effectiveness of a
`Section
`203
`termination
`is
`based
`on
`a
`mischaracterization of that court’s decision, in which
`he incorrectly maintains that the Eleventh Circuit
`held that the three-year limitations period on a
`Section 203 lawsuit begins to run from the date of the
`written response to the Section 203 termination letter
`(which such written response Petitioner claims is not
`authorized anywhere in the Copyright Act). (Pet., 11).
`But, that was not the Eleventh Circuit’s holding at all.
`The Eleventh Circuit simply held that an express
`assertion of sole authorship triggers the accrual of an
`authorship or ownership claim. (Pet. App. A, 2a). That
`express repudiation occurred in 2015 when Casey sent
`the Petitioner a letter asserting that Petitioner was
`never an “author.” The court’s holding is not explicitly
`
`
`
`
`
`
`
`17
`
`
`based on a written “response” to the Section 203 letter,
`but on the express repudiation itself.
`are
`below
`Put
`short,
`the
`decisions
`unexceptional, fact-specific applications of the well-
`settled rule that the statute of limitations does not
`apply to a defense. The decisions below do not depart
`from established law, create any new precedent, and
`do not merit this Court’s review.
`C.
`
`THE PETITION DOES NOT RAISE ANY
`ISSUES THAT WARRANT THIS COURT’S
`REVIEW.
`
`1.
`
`The Petitioner’s Claim of Alleged
`“Error” in the Holdings Below is Not
`a Compelling Reason
`to Grant
`Certiorari Review.
`
`To the extent the Petitioner maintains that the
`courts below “misapplied” the statute of limitations
`under the facts of this case [Pet., 12] or explicitly
`argues that “The Holdings Below Were Incorrect” (his
`own words) [Id., 13], the Petition does not present a
`“compelling reason” to grant certiorari review. Rule
`10 of the Supreme Court provides that “[a] petition for
`a writ of certiorari will be granted only for compelling
`reasons.” (emphasis added). And, as Rule 10 further
`makes clear, “[a] petition for a writ of certiorari is
`rarely granted when the asserted error consists of
`erroneous factual findings or the misapplication of a
`properly stated rule of law.” See also S. Shapiro, K.
`Geller, T. Bishop, E. Hartnett, & D. Himmelfarb,
`Supreme Court Practice § 5.12(c)(3), p. 352 (10th ed.
`
`
`
`
`
`
`
`18
`
`
`2013) (“[E]rror correction ... is outside the mainstream
`of the Court's functions and ... not among the
`‘compelling reasons' ... that govern the grant of
`certiorari”).
`Here, the Petitioner all but concedes that he is
`merely seeking to correct perceived “error,” arguing
`that the holdings below were “incorrect” and relying
`as he did in the court below on the Sixth Circuit’s
`decision in Garza v. Everly, 59 F.4th 876 (6th Cir
`2023), which he contends the Eleventh Circuit
`misapplied to the facts of our case. In other words, the
`Petitioner merely disagrees with the Eleventh
`Circuit’s decision, which is not a proper basis for
`certiorari review.
`
`2.
`
`the
`(and
`The Eleventh Circuit
`District Court) Properly Applied
`Settled Law.
`
`Moreover, the lower courts got it right. The
`Petitioner not only mischaracterizes the holding of
`Garza and its application to the facts of this case (as
`he did in the courts below), but applying the holding
`of Garza to the facts of our case actually supports
`Casey’s statute of limitations affirmative defense and
`the Eleventh Circuit’s decision.
`In Garza, the Sixth Circuit reiterated the
`general rule – applied by the lower courts here – that
`the statute of limitations does not apply to defenses:
`“‘[a] defendant who is not seeking any affirmative
`relief and who asserts a defense only to defeat a
`plaintiff's claim is not barred by a statute of
`
`
`
`
`
`
`
`19
`
`
`limitations.’” Garza, 59 F.4th at 883 (citation
`omitted). The Sixth Circuit also identified a narrow
`“exception” to this general rule, explaining that the
`statute of limitations may apply in the “limited
`situation where a
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