             Case: 13-12351    Date Filed: 01/22/2014   Page: 1 of 17


                                                                  [PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 13-12351
                            Non-Argument Calendar
                          ________________________

                       D.C. Docket No. 1:12-cv-23795-UU



RONALD LOUIS SMITH, JR.,
as Personal Representative of the Estate of Ronald Louis Smith,

                                                         Plaintiff - Appellant,

                                     versus

HARRY WAYNE CASEY,
individually,
K.C. & THE SUNSHINE BAND, INC.,
a Florida Corporation,
SUNSHINE SOUND ENTERTAINMENT, INC.,
agent of Sunshine Sound Enterprises, Inc.,
HARRICK MUSIC, INC.,
a Florida Corporation,
JIMMIE HORACE HORNE, JR.,
individually,
f.k.a. Jimmy "Bo" Horne,
JOY PRODUCTIONS, INC.,
a Florida Corporation,

                                                         Defendants - Appellees.
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                            ________________________

                    Appeal from the United States District Court
                        for the Southern District of Florida
                          ________________________

                                  (January 22, 2014)

Before WILSON, FAY and KRAVITCH, Circuit Judges.

KRAVITCH, Circuit Judge:

      At issue in this appeal is whether the author of a musical composition who

assigned his rights in exchange for royalties may rely for purposes of standing to

sue for infringement under the Copyright Act on a registration his publisher filed.

Ronald Louis Smith, Jr., as representative for the estate of his late father, sued

several entities with whom Ronald Louis Smith, Sr. (Smith), recorded music in the

late 1970s. The estate alleged infringement of Smith’s copyright in a musical

composition entitled “Spank,” along with a claim for breach of contract and a

claim seeking a declaration of the validity of copyright transfer terminations the

estate filed under 17 U.S.C. § 203. Concluding the estate lacked statutory standing

to sue for infringement, the district court dismissed that claim and denied a motion

to amend the complaint as futile. The court then concluded the declaratory-

judgment claim was not ripe and declined to exercise supplemental jurisdiction

over the contract claim. Because the conclusion that the estate lacked statutory

standing to sue for copyright infringement was erroneous, we reverse.


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                                                I.

       When reviewing a dismissal for failure to state a claim, we accept as true the

allegations in the complaint and recite them in the light most favorable to the

plaintiff. See Starship Enters. of Atlanta, Inc. v. Coweta Cnty., Ga., 708 F.3d

1243, 1252 (11th Cir. 2013). Smith wrote “Spank,” and he later produced a

recording of the song by another artist under a Recording Agreement he had signed

with a company known at the time as Sunshine Sound Enterprises, Inc. (Sunshine

Sound). Sunshine Sound released the record in early 1979 and registered a

copyright for the sound recording. Smith’s Recording Agreement contained a

provision 1 requiring him — either with Sunshine Sound or a publishing company

of its choosing — to “execute . . . a separate Songwriter’s Agreement in respect of

each . . . Composition” recorded under the agreement “in the form of Exhibit ‘A’

atttached hereto . . . .” 2 Under that form songwriter’s contract, Smith would

“sell[], assign[], and deliver[]” his rights in a composition in exchange for

scheduled royalties for different uses of the work. In the event Smith failed to



1
  The provision purports both to immediately assign the composition copyrights for apparently
unwritten copyrights to Sunshine Sound and to require Smith to later assign the same copyrights
to either Sunshine Sound or another entity by separate agreement. In the procedural posture of
this case, that provision is not so patently clear about the ownership of the “Spank” copyright as
to obviate the need for development of a factual record on the issue.
2
  Although not attached to the complaint, we consider the Recording Agreement and appended
form songwriter’s contract in reviewing the complaint’s allegations because that document was
referred to in the complaint, is undisputed, and is central to the estate’s claims. See Starship
Enters of Atlanta, Inc., 708 F.3d at 1253 n.13.
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execute the form agreement for any given composition, he gave Sunshine Sound

authority “to execute said agreement in [his] name.”

      With respect to “Spank,” however, neither Smith nor Sunshine Sound acting

on his behalf inked such an agreement. Nonetheless, around the same time it was

recorded, Harrick Music, Inc. (Harrick Music), a publishing company affiliated

with Sunshine Sound, registered a copyright for the musical composition “Spank,”

identifying Smith as composer and itself as claimant. Harrick Music checked a

box on the registration indicating the song was not a composition made for hire.

      Smith’s relationship with Sunshine Sound deteriorated after “Spank” was

released. As a result, on September 30, 1980, he signed a Release Agreement with

the company terminating his recording contract and mutually releasing all claims

and obligations under it “except as otherwise provided” in the Release. As

relevant here, the Release stated that sound recordings made under the Recording

Agreement remained Sunshine Sound’s property and Sunshine Sound remained

“obligated to [Smith] under the royalty provisions” of the Recording Agreement.

The Release was wholly silent, however, as to where ownership rested for the

copyrights in the musical compositions embodied on the recordings. And Harrick

Music was not a party to the Release.

      In the ensuing years, Smith acquiesced in Harrick Music’s administration of

the “Spank” composition copyright, but, he alleged, the company never remitted a


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cent to him. According to the complaint, neither did Sunshine Sound. Under the

Recording Agreement and the form songwriter’s agreement attached to it,

however, Smith was owed percentage royalties for the song’s exploitation in

exchange for assigning his rights to it. So on November 28, 2011, shortly before

his death, Smith through counsel sent a cease-and-desist letter revoking Harrick

Music’s authority to administer “Spank.” And Smith also filed with the Copyright

Office four Notices of Termination, seeking to formally record his revocation.

Despite this, the defendants continued to commercially exploit the composition.

       So on October 18, 2012, Smith’s estate filed suit against Sunshine Sound,

Harrick Music, and several related entities seeking, among other things, damages

for infringement 3 from the November 2011 date of the cease-and-desist letter. The

estate also alleged the entities had breached agreements with Smith under the

Recording Agreement for “Spank” and an album released under his own name in

1978 entitled Party Freaks, Come On. And the estate sought a declaration of the

validity of the termination notices it had filed.

       Two defendants the Smith estate named — Jimmie Horne, Jr., who

performed “Spank” on the recording Smith produced that was released under

Horne’s stage name Jimmy “Bo” Horne in 1979, and a related company called Joy


3
  The estate has expressly and repeatedly disclaimed any claim for infringement of the “Spank”
sound recording. Thus, only the copyright in the underlying musical composition is at issue in
this case.
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Productions, Inc. — moved to dismiss the infringement count as to them. No other

defendant joined the motion. But, after reviewing it, the district court concluded

Smith lacked statutory standing to pursue his copyright claim and sua sponte

dismissed that count with prejudice as to all of the defendants. Harrick Music, not

Smith or his estate, had registered the copyright, the district court noted, and

registration was a necessary precondition to filing suit for infringement. The

district court also observed that Smith’s allegations were inadequate to state a

plausible claim of infringement against Horne and Joy Productions but that it was

possible the deficiency could be cured by amendment. Doing so, however, would

be “futile,” the district court decided, “given that [the estate] lacks statutory

standing to bring a copyright infringement charge at the present time.”

      Smith’s estate moved the court to reconsider its dismissal of the copyright

infringement claim, contending statutory standing for the claim existed as a result

of the registration Harrick Music had filed. And the estate requested leave to file

an amended complaint, stating that it could cure any deficiency if the allegations of

infringement against Horne and Joy Productions were insufficient. The district

court denied the motion, without any word regarding the motion to amend,

presumably resting upon its previous determination that amendment would be

futile. That decision was based on the court’s finding that the Smith estate “may

not rely on Harrick’s copyright registration in order to bring a suit for copyright


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infringement.” Later, the court sua sponte dismissed the remainder of the estate’s

case, concluding the declaratory-judgment claim was unripe. Without that claim,

the court concluded, there was no independent basis for federal subject matter

jurisdiction, and the court declined to exercise supplemental jurisdiction over the

estate’s claims that Harrick Music and Sunshine Sound breached express and

implied contracts with Smith. This is the estate’s appeal.

                                         II.

      Smith’s estate argues the court was wrong to conclude it lacked statutory

standing to bring an infringement claim and, concomitantly, abused its discretion

in denying as futile leave to amend the complaint. As a result, the estate contends,

an independent federal claim exists in the case, and the court should not have

declined to exercise pendent jurisdiction over the breach-of-contract claim.

Finally, the estate urges that its declaratory judgment claim was ripe for

disposition. We agree with the first two points but disagree with the third.

      We review de novo a district court’s dismissal of a complaint for failure to

state a claim upon which relief could be granted. Starship Enters. of Atlanta, Inc.,

708 F.3d at 1252. And we review for an abuse of discretion the denial of a motion

to reconsider, Region 8 Forest Service Timber Purchasers Council v. Alcock, 993

F.2d 800, 805-06 (11th Cir. 1993), reviewing any attendant question of law de

novo, see Coventry First, LLC v. McCarty, 605 F.3d 865, 869 (11th Cir. 2010).


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      “To make out a prima facie case of copyright infringement, a plaintiff must

show that (1) it owns a valid copyright in the [work] and (2) defendants copied

protected elements from the [work].” Saregama India Ltd. v. Mosley, 635 F.3d

1284, 1290 (11th Cir. 2011) (alterations in original) (internal quotation marks

omitted). “The legal or beneficial owner of an exclusive right under a copyright is

entitled, subject to the requirements of section 411 [of the Copyright Act], to

institute an action for any infringement of that particular right committed while he

or she is the owner of it.” 17 U.S.C. § 501(b). Section § 411(a) provides, in turn,

that “no civil action for infringement of the copyright in any United States work

shall be instituted until preregistration or registration of the copyright claim has

been made in accordance with [the Act].” Id. at 411(a).

      The 1976 Copyright Act’s legislative history explains that Congress

intended “‘beneficial owner,’” as the term is used in § 501(b), to “include . . . an

author who had parted with legal title to the copyright in exchange for percentage

royalties based on sales or license fees.” H.R. Rep. No. 94-1476, at 159 (1976).

To our knowledge, each of our sister circuits to have confronted the situation has

agreed that an author who assigns his legal rights to a work in exchange for

royalties from its exploitation has a beneficial interest sufficient for statutory

standing under § 501(b). See Batiste v. Island Records Inc., 179 F.3d 217, 219-21

& n.2 (5th Cir. 1999) (stating that composers who had assigned composition to


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music publisher in exchange for royalties could “properly assert . . . copyright

infringement claims”); Cortner v. Israel, 732 F.2d 267, 271 (2d Cir. 1984) (“When

a composer assigns copyright title to a publisher in exchange for the payment of

royalties, an equitable trust relationship is established between the two parties

which gives the composer standing to sue for infringement of that copyright.”); see

also Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1144 (9th Cir. 2003)

(“Several other circuits have held that a creator may be a beneficial owner where a

creator assigned all rights to a work, but the assignee was obligated to pay royalties

to the composer if it exploited the work.”); Moran v. London Records, Ltd., 827

F.2d 180, 183 (7th Cir. 1987) (citing “an author who assigned his work in

exchange for royalties” as “the classic example of a beneficial owner in the cases

deciding standing to sue under the 1909 Act,” and stating “Congress merely

intended to codify the existing case law”); 3 Melville B. Nimmer & David

Nimmer, Nimmer on Copyright § 12.02[D] (stating that § 501(b)’s definition of

beneficial owner “follows the law established by the courts under the 1909 Act”).

By contrast, an author who creates a work within the scope of her employment

under a “work for hire” agreement lacks statutory standing to maintain an

infringement suit. 4 See 17 U.S.C. § 201(b) (“In the case of a work made for hire,


4
  Horne and Joy Productions argue “Spank” was a work created for hire. Given that the
complaint does not allege the “Spank” composition was a work for hire, the language of both the
recording and form songwriter’s agreements facially assign the copyright in exchange for
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the employer or other person for whom the work was prepared is considered the

author . . . .”); Moran, 827 F.3d at 182-83; Silvers v. Sony Pictures Entm’t, Inc.,

402 F.3d 881, 883, 886-87 (9th Cir. 2005) (en banc) (quoting the legislative history

regarding the meaning of beneficial ownership to distinguish creators of works for

hire, who have no standing to sue).

       Under this definition, the estate has a sufficient ownership interest for

standing under § 501(b). According to Smith’s allegations, he never signed any

agreement giving Harrick Music the right to exploit the “Spank” copyright. But

even were we to treat Smith’s agreement to permit Sunshine Sound to execute the

form songwriter’s contract appended to his Recording Agreement as acquiescence

to its terms for the “Spank” composition, Smith still would only have assigned his

rights to the musical composition in exchange for royalties. Thus, he has at least a

beneficial interest that satisfies § 501(b) of the Copyright Act. 5

       Section 501(b), however, contains a caveat. Even the beneficial owner of an

exclusive right in a copyrighted work must still demonstrate compliance with the

Act’s formalities, which require “preregistration or registration of the copyright

claim . . . in accordance with this title.” 17 U.S.C. § 411(a). Harrick Music

registered the copyright in the “Spank” composition, but Smith did not file a

royalties, and the copyright registration expressly states that it was not a work made for hire, the
issue is at least so questionable as not to be capable of decision on a motion to dismiss.
5
  Because we conclude the estate has at least pleaded a sufficient beneficial interest for purposes
of statutory standing, we expressly do not reach the alternative claim that the estate has a legal
interest in the composition.
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separate registration. Because Smith had not registered the work, the district court

concluded, he lacked statutory standing. In reaching that conclusion, the district

court rejected the Smith estate’s contention that it could rely on the registration

Harrick Music had filed to satisfy § 411(a).

      The district court’s construction of § 411(a) was too narrow. Harrick Music

registered a claim to copyright in the “Spank” composition, specifically identifying

Smith as the composer and informing the Copyright Office the work was not made

for hire. Nothing in § 411(a) indicates that a composer who has agreed to assign

his legal interest in a composition, along with the right to register it, in exchange

for royalties, may not rely on the registration his assignee files. Where a publisher

has registered a claim to copyright in a work not made for hire, we conclude the

beneficial owner has statutory standing to sue for infringement.

      In reaching this conclusion, we are in good company. As best we can tell,

the only other court of appeals to have addressed the issue held, under nearly

identical circumstances, that composers who retained a beneficial interest could

rely upon the registration their music publisher filed. See Batiste, 179 F.3d at 220-

21 & n. 2. In that case, three brothers wrote a song entitled “Funky Soul” and then

signed an agreement transferring all rights in the composition, including “the

exclusive right to secure copyright,” to a publisher in exchange for royalties. Id. at

219. The Fifth Circuit affirmed the denial of a motion to dismiss the brothers’


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infringement claims for lack of standing, finding “no merit” in the contention that

they “could not demonstrate that they had obtained or applied to obtain a valid

copyright registration for ‘Funky Soul.’” Id. at 220-21 & n.2. Composers who

agree to assign their legal rights to a work in exchange for royalties, the court

concluded, “may properly assert their copyright infringement claims as beneficial

owners of [the publisher’s] registered copyright.” Id. at n.2; see also Morris v.

Bus. Concepts, Inc., 259 F.3d 65, 71 (2d Cir. 2001) (recognizing that magazine

publisher could have registered copyright in article that author could have relied

upon for standing to sue an alleged infringer, but finding no adequate registration

of the article individually) , abrogated in part by Reed Elsevier, Inc., v. Muchnick,

559 U.S. 154 (2010).

       For standing purposes, the leading treatise on copyright explains that the

“plaintiff in court obviously need not be the same party who initially registered the

subject work.” 6 3 Nimmer on Copyright § 12.02[B][1]. Moreover, cases

interpreting the 1909 Act, which are instructive in interpreting the 1976 Act,

recognized that “a publisher could obtain and hold a copyright in its name in trust

for the true author,” and in such circumstances “the author would thus have


6
 The defendants point out that this sentence is in a paragraph discussing the concept of
divisibility of rights under the 1976 Act by contrast to indivisibility of copyright under the 1909
Act and using, as examples, exclusive and nonexclusive licensees. They fail to explain,
however, why that matters and provide no explanation why the rule for registration should differ
depending upon the type of ownership interest (a distinct element of statutory standing) a
plaintiff has.
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standing to sue as a beneficial owner.” Moran, 827 F.2d at 183 (citing cases); see

Kernel Records Oy v. Mosley, 694 F.3d 1294, 1303 n.9 (11th Cir. 2012)

(“[P]recedent . . . under the 1909 Copyright Act is instructive.”), cert. denied, 133

S. Ct. 1810 (2013). Were we to ignore the weight of this authority and hold

otherwise, redundant registrations would be necessary for statutory standing

purposes every time legal and beneficial ownership of the same exclusive right

rested with two distinct parties, even if they joined together in filing suit against an

alleged infringer. Absent clear statutory language requiring it, we do not believe

Congress would have intended such a result. We hold the Smith estate has

adequately alleged facts to support its statutory standing to sue for infringement of

the “Spank” copyright.

       With this conclusion, it follows that we must also reverse the district court’s

denial of the estate’s motion to amend the complaint. 7 “We will only reverse a


7
  The defendants contend we may affirm on either of two alternative grounds: that the estate
failed to satisfy the local procedural rules regarding motions for leave to amend, or that the estate
failed to demonstrate that it satisfied the good-cause standard applicable to the motion. See S.
Grouts & Mortars, Inc. v. 3M Co., 575 F.3d 1235, 1241 (11th Cir. 2009). But the district court
did not decide that Smith’s estate had failed to show good cause or to comply with local rules,
and those decisions are matters of discretion. Fils v. City of Aventura, 647 F.3d 1272, 1282-83
(11th Cir. 2011) (compliance with local rules); S. Grouts & Mortars, Inc., 575 F.3d at 1240
(good cause to amend). With respect to a decision we would review only for an abuse of
discretion, we generally decline to substitute our judgment about the matter when the district
court has not yet decided it and leave the decision for the district court to make in the first
instance. See McKusick v. City of Melbourne, Fla., 96 F.3d 478, 489 n.7 (11th Cir. 1996)
(explaining that, when reviewing a decision committed to the discretion of the district court that
the court did not have occasion to make, “the more appropriate course is for us to allow the
district court the opportunity to address that matter in the first instance.”). We see no reason to
depart from that sound practice in this case.
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district court’s denial of a motion to amend in instances in which the district court

has clearly abused its discretion.” Oravec v. Sunny Isles Luxury Ventures, L.C.,

527 F.3d 1218, 1231 (11th Cir. 2008) (internal quotation marks omitted). “[A]

ruling based on an error of law is an abuse of discretion.” Young v. New Process

Steel, LP, 419 F.3d 1201, 1203 (11th Cir. 2005). The district court concluded

amendment of the complaint would be futile because the estate lacked statutory

standing. Because that decision was incorrect, the court abused its discretion in

denying leave to amend the complaint.

      For the same reason, the district court also abused its discretion in declining

to exercise supplemental jurisdiction over the estate’s breach-of-contract claim.

The district court dismissed the claim based on its conclusion that all “federal

claims ha[d] dropped out of [the] lawsuit . . . .” Because that premise was legally

erroneous, the court erred in dismissing the pendent state-law claim.

      The district court’s conclusion regarding the estate’s declaratory-judgment

claim, however, is another matter. We review the district court’s dismissal of a

Declaratory Judgment Act claim for an abuse of discretion. Wilton v. Seven Falls

Co., 515 U.S. 277, 289-91 (1995); see also 28 U.S.C. § 2201(a) (providing that

district courts “may” exercise jurisdiction over a declaratory-judgment claim).

“Since its inception, the Declaratory Judgment Act has been understood to confer

on federal courts unique and substantial discretion in deciding whether to declare


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the rights of litigants.” Wilton, 515 U.S at 286. The act “vest[s] district courts

with discretion in the first instance[] because facts bearing on the usefulness of the

declaratory judgment remedy, and the fitness of the case for resolution, are

peculiarly within their grasp.” Id. at 289.

      In this case, the district court determined the Smith estate’s claim seeking a

declaration regarding the effectiveness of its § 203 copyright termination notices

was not ripe for adjudication. The court did not abuse its discretion in declining

jurisdiction over the claim for that reason. “In deciding whether a claim is ripe for

adjudication or review, we look primarily at two considerations: 1) the fitness of

the issues for judicial decision, and 2) the hardship to the parties of withholding

court consideration.” Temple B’Nai Zion, Inc. v. City of Sunny Isles Beach, Fla.,

727 F.3d 1349, 1356 (11th Cir. 2013) (internal quotation marks omitted). As best

we can tell, the Copyright Office has neither accepted nor rejected the estate’s

termination notices. Even if we rely upon the filing receipts the estate entered into

the record, they expressly caution that the party’s filing is “merely a preliminary

step” and issuance of the receipt “do[es] not imply that any final determination has

been made in the case.” And the receipts explain that “Official action . . . can be

taken only after there has been a full examination of the claim following regular

Copyright Office procedures.” See Temple B'Nai Zion, Inc., 727 F.3d at 1356

(“[Ripeness] doctrine serves . . . [to] shield[] agencies from judicial interaction


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until an administrative decision has been formalized and its effects felt in a

concrete way by the challenging parties.” (alteration and internal quotation marks

omitted)).

       Moreover, the estate expressly alleged that the earliest date the termination

notices could be legally effective is August of 2014. See 17 U.S.C. § 203(a)(3)

(stating that termination may only be “effected . . . during a period of five years

beginning at the end of thirty-five years from the date of execution of the grant; or,

if the grant covers the right of publication . . . thirty-five years from the date of

publication of the work under the grant or at the end of forty years from the date of

execution of the grant, whichever term ends earlier”). Thus, even had the

Copyright Office completed its review, the complaint’s allegations indicate that the

§ 203 notices would not presently affect the parties’ rights in the works the notices

identify. See Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43, 57 (1993)

(“[D]eclaratory judgment remedies . . . are discretionary, and courts traditionally

have been reluctant to apply them to administrative determinations unless these

arise in the context of a controversy ‘ripe’ for judicial resolution, that is to say,

unless the effects . . . have been felt in a concrete way. . . .” (citations, footnote,

and internal quotation marks omitted)). The issues are, therefore, not yet fit for

adjudication and dismissal without prejudice would result in essentially no

hardship at all for either party. Under these circumstances, we conclude the district


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court did not abuse its discretion in dismissing without prejudice the estate’s claim

seeking a declaration of the validity of the estate’s termination notices as

premature. 8

                                              III.

       Accordingly, we believe the district court was within its discretion to decline

to exercise jurisdiction over the estate’s claim under the Declaratory Judgment Act

and, therefore, affirm the dismissal of that claim without prejudice. But the district

court’s conclusion that the estate lacked statutory standing to maintain a copyright

infringement claim with respect to the “Spank” composition was erroneous. For

that reason, we vacate the dismissal of that claim. Because the court denied leave

to amend and dismissed the estate’s contract claims as a consequence of this same

erroneous conclusion, we reverse those decisions as well. And we remand this

matter for further proceedings consistent with this opinion. 9

       AFFIRMED in part, REVERSED in part, and REMANDED.




8
  The district court also concluded that the estate mooted its claim as to two notices the
Copyright Office rejected without receipt by filing substitute notices with respect to the same
works rectifying the deficiencies the Copyright Office had identified. On appeal, the estate
makes no argument that the court’s conclusion was incorrect as to the two earlier § 203 notices
and has, therefore, abandoned any contention with respect to them. Hamilton v. Southland
Christian Sch., Inc., 680 F.3d 1316, 1318-19 (11th Cir. 2012)
9
  As this appeal is not frivolous, the motion for sanctions filed by Harry Wayne Casey, Harrick
Music, Inc., K.C. & The Sunshine Band, Inc., and Sunshine Sound Entertainment, Inc., is
DENIED.
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