Opposition Brief — Stone v. Williams

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No. 89-295 eth be tA

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In The JOSEPH F. SPANIOL, JR,

CLERK

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Supreme Court of the United States

October Term, 1989

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—

CATHY YVONNE STONE,

vs.

Petitioner,

HANK WILLIAMS, J®., BILLIE JEAN WILLIAMS BERLIN,

CHAPPELL MUSIC: COMPANY, a Division of CHAPPELL &

CO., INC., ABERBACH ENTERPRISES, LTD., ACUFF-ROSE-

OPRYLAND MUSIC, INC., MILENE-OPRYLAND MUSIC,

INC., WESLEY H. ROSE and ROY ACUFF, Individually and as

Trustees in Liquidation for Stockholders of Fred Rose Music,

Inc. and Milene Music, Inc., FRED ROSE MUSIC, INC., and

MILENE MUSIC, INC.,

Respondents.

-.

4

On Petition For Writ Of Certiorari To The United States Court

Of Appeals For The Second Circuit

,

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BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

OF COUNSEL:

Rosert J. WARNER, JR. p=

RICHARD H. FRANK, JR.

DEARBORN & EWING

One Commerce Place

Nashville, TN 37239

(615) 259-3560

W. MiIcHAEL MiILom

CurisTIAN A. HORSNELL

Wyatt, TARRANT, Comps,

Gitpert & Mitom

1100 17th Avenue, South

Nashville, TN 37212

(615) 320-5551

ALAN L. SHULMAN,

Counsel of Record

SILVERMAN, SHULMAN &

SLornick, P.C.

136 East 57th Street

New York, NY 10022

(212) 758-2020

Attorneys for

Respondents

Hank Williams, Jr.,

Wesley H. Rose,

Roy Acuff, Fred Rose

Music, Inc. and

Milene Music, Inc.

(Additional Counsel Listed on Inside Cover)

COCKLE LAW BRIEF PRINTING CO,, (800) 225-6964

OR CALL COLLECT (402) 342-2831

LAWRENCE I. Fox

Counsel of Record

BERGER & STEINGUT

600 Madison Avenue

New York, NY 10022

(212) 980-1400

OF COUNSEL:

STEPHEN K. RusH

FARRIS, WARFIELD & KANADAY

Third National Financial Center

Nashville, TN 37219

(615) 244-5200

Attorneys for

Respondents Acuff-Rose-

Opryland Music, Inc. and

Milene-Opryland Music, Inc. .

THOMAS R. Levy

Counsel of Record

300 East 42nd Street

New York, NY 10017

(212) 682-6110

Attorney for

Respondents Billie Jean

Williams Berlin,

Chappell Music Company

and Aberbach Enterprises, Ltd.

I.

PARTIES TO THE PROCEEDINGS

Although the parties to the proceedings are set forth

in the caption hereof, in accordance with Supreme Court

Rule 28.1, the parent companies, subsidiaries (except

wholly owned subsidiaries) and affiliates of the corporate

Respondents are listed herein.

Subsequent to the filing of this action, Respondent

Acuff-Rose-Opryland Music, fnc. changed its name to

Acuff-Rose Music, Inc. and Respondent Mile»e-Opryland

Music, Inc. changed its name to Milene Music, Inc. The

current Acuff-Rose Music, Inc. and Milene Music, Inc. are

wholly-owned subsidiaries of Opryland Music Group,

Inc. Opryland Music Group, Inc. is a wholly-owned sub-

sidiary of Opryland USA Inc. Opryland USA Ince. is a

wholly-owned subsidiary of Gaylord Broadcasting Com-

pany. Gaylord Broadcasting Company is a wholly-owned

subsidiary of Oklahoma Publishing Company, a Delaware

corporation. There are no subsidiaries of Respondents

Acuff-Rose-Opryland Music, Inc. (now Acuff-Rose Music,

Inc.) and Milene-Opryland Music, Inc. (now Milene

Music, Inc.). Oklahoma Publishing Company and its

wholly-owned subsidiaries have numerous, wholly-

owned subsidiaries which could be classified as affiliates

of Respondents Acuff-Rose-Opryland Music, Inc. (now

Acuff-Rose Music, Inc.) and Milene-Opryland Music, Inc.

(now Milene Music, Inc.). However, as corporations

either wholly-owned by Oklahoma Publishing Company

or its wholly-owned subsidiaries, none of such affiliates

could constitute a conflict of ownership interest for the

Court and are not included herein.

ii

I.

PARTIES TO THE PROCEEDINGS (Cont.)

Respondents Fred Rose Music, Inc. and Milene

Music, Inc. have been dissolved and their assets distrib-

uted to Wesley H. Rose and Roy Acuff, as Trustees in

Liquidation for Stockholders of Fred Rose Music, Inc. and

Milene Music, Inc.

Respondent Aberbach Enterprises, Ltd. has no parent

or subsidiary corporations, nor does it have any affiliates.

Respondent Chappell & Co., Inc. has changed its

name to Warner/Chappell Music, Inc. Warner/Chappell

Music, Inc. is a wholly-owned subsidiary of Warner Com-

munications, Inc. (“WCI”) which is a diversified enter-

tainment and communications company. WCI has

numerous wholly-owned subsidiaries and wholly-owned

subsidiaries of those subsidiaries which could be classi-

fied as affiliates of Respondent Warner/Chappell Music,

Inc. As corporations either wholly-owned by WCI or its

wholly-owned subsidiaries, none of such affiliates could

constitute a conflict of ownership interest for the Court

and are not included herein. Three (3) subsidiaries of

WCI or its wholly-owned cman are not wholly-

owned and are listed below:

Warner Italia, S.P.A. (an Italian corporation)

Warner Pioneer Corporation (a Japanese

corporation)

Warner Cable Communications of Cincinnati,

Inc. (an Ohio corporation).

ili

Il.

TABLE OF CONTENTS

Page

I. PARTIES TO THE PROCEEDINGS........... i

| Il. TABLE OF CONTENTS................00000- iii

Ill. TABLE OF AUTHORITIES.................-. iv

IV. STATEMENT OF THE CASE................. 1

A. STATEMENT OF MATERIAL FACTS..... 1

B. COURSE OF PROCEEDINGS ............ 6

1. FEDERAL PROCEEDINGS ........... 6

2. ALABAMA STATE COURT PROCEED-

iG Si aT Sel 9

V. SUMMARY OF ARGUMENT...............-. 11

Vi. AM en 13

A. THE COURT OF APPEALS DECISION

DOES NOT CONSTITUTE JUDICIAL

LEGISLATION OR CONFLICT WITH

PRIOR DECISIONS OF THE SUPREME

CR AAs ccessbbexrcnes cuneaennuey ss 13

B. THE COURT OF APPEALS APPLICA-

TION OF THE FEDERAL RULE OF

LACHES DOES NOT CONFLICT WITH

DECISIONS OF THE SUPREME COURT

OR PRODUCE CONFUSION WITH THE

OPINION OF THE ALABAMA SUPREME

COURT IN STONE V. GULF AMERICAN

CEE ahs Sos aan ee eeeek eee es 16

C. THE DECISIONS OF THE DISTRICT

COURT AND THE COURT OF APPEALS

WERE RENDERED IN ACCORDANCE

WITH ACCEPTED AND USUAL JUDICIAL

STANDARDS AND PROCEDURES........ 19

Vee: CR pho ov 346 ces beh ceeus cine ovens 22

a .

iv

Ili.

TABLE OF AUTHORITIES

Page

CAsEs:

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106

S.Ct. 2505, 91 LBA Oe Be CIDUGD. 6 cos cece .ss. 21

Argus, Inc. v. Eastman Kodak Co., 801 F.2d 38 (2d

Cir. 1986), cert. denied, 479 U.S. 1088, 107 S.Ct.

ee ee Ef eererr ere rer Tree 21

Burnett v. New York Central R.R. Co., 380 U.S. 424,

85 S.Ct. 1050, 13 L.Ed.2d 941 (1965)............ 14, 17

Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548,

OF Le Bie Ces Fr cee eee ev iste escccess. 21

Czaplicki v. The S. S. Hoegh Silvercloud, 351 U.S.

525, 76 S.Ct. 946, 100 L.Ed. 1387 (1956)........... 21

First National Bank of Arizona v. Cities Service Co.,

391 U.S. 253, 88 S.Ct. 1575, 20 L.Ed.2d 569

(1968), aff’g 361 F.2d 671 (2d Cir. 1966) ........... 21

Frederick Music Co. v. Sickler, 708 F.Supp. 587

UE 5 5.05 0h apa bWe ns hho senda a tathues 30s sos 9

French Republic v. Saratoga Vichy Spring Co., 191

U.S. 427, 24 S.Ct. 145, 48 L.Ed. 247 (1903) ........ 17

Gardner v. Panama R.R. Co., 342 U.S. 29, 72 S.Ct. 12,

96 L.Ed. 31 (IDST) 0... eee e cence re sascncrcveces 21

Hagans v. Lavine, 415 U.S. 528, 94 S.Ct. 1372, 39

Os 0.5. 5f eae SOR Rene beaks ds Vee 8% 19

Holmberg v. Ambrecht, 327 U.S. 392, 66 S.Ct. 582, 90

5 «3: AAT eer ry yee her rer serra 14, 15

Knight v. U.S. Fire Insurance Co., 804 F.2d 9 (2d Cir.

1986), cert. denied, 480 U.S. 932, 107 S.Ct. 1570,

Se SAE SUE MII hob. Sc Ka Ra BORER USRRAESTS & 21

|

Vv

| IV.

| TABLE OF AUTHORITIES (Cont.)

| Page

Lingenfelter v. Keystone Consol. Industries, Inc., 691

sv eo Fe, be S| PPeeeeTEeeTTerirr reir rears 14

;

| Lois Sportswear, U.S.A., Inc. v. Levi Strauss & Co.,

POR Time Oe GE Ga POOP aw ce ec cccvccvcsvccvacss 21

Lottie Joplin Thomas Trust v. Crown Publishers, Inc.,

ee ee ee rr ee eee 14

Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538

CRS. 050k 6 ve dew reece ud 4We oases i eeddeeeecbacds 21

Menendez v. Holt, 128 U.S. 514, 9 S.Ct. 143, 32 L.Ed.

SE oc Schule lamba th ciceharinabeneesa teens 16, 17

Miller Music Corp. v. Charles N. Daniels, Inc., 362

U.S. 373, 80 S.Ct. 792, 4 L.Ed.2d 804 (1960)....... 15

New Era Publications International, ApS. v. Henry

Holt & Co., 873 F.2d 576 (2d Cir. 1989)............ 14

New York City Transit Authority v. Beazer, 440 U.S.

568, 99 S.Ct. 1355, 59 L.Ed.2d 587 (1979).......... 19

Potash Co. of America v. International Mineral &

Chemical Corp., 213 F.2d 153 (10th Cir. 1954) ...... 14

Rice v. Sioux City Cemetery, 349 U.S. 70, 15 S.Ct.

614, 99 L.Ed. B97 (1955) ... 2... s ee seeesecceeeees 15

Stone v. Gulf American Fire and Casualty Co., Case No.

87-269 (Sup. Ct. Ala., filed July 5, 1989)....9, 11, 16, 17

T.B. Harms v. Eliscu, 339 F.2d 823 (2d Cir. 1964)..... 18

Thermtron Products, Inc. v. Hermansdorfer, 423 U.S.

336, 96 S.Ct. 584, 46 L.Ed.2d 542 (1976)........... 19

|

vi

V.

TABLE OF AUTHORITIES (Cont.)

Page

STATUTES: ca

i vcd ad ks sede ROR DCO WERE SSR OO Os 18

RULEs:

Supreme Court Rule 17.1 ..............sseeseeeee 15

IV.

STATEMENT OF THE CASE

A. STATEMENT OF MATERIAL FACTS

On September 12, 1985, Petitioner commenced this

action for declaratory judgment and ancillary relief with

respect to her alleged entitlement to an interest in the

renewal term of copyright in musical compositions writ-

ten by Hiriam “Hank” Williams. Petitioner bases her

entitlement upon her alleged status as the illegitimate

daughter of Hiriam “Hank” Williams who died on Janu-

ary 1, 1953, five days before Petitioner’s birth. This action

was commenced more than seventeen (17) years after

judicial proceedings in 1967, in which Petitioner was

represented by a court appointed guardian ad litem who

addressed such status and attendant rights, and more

than eleven (11) years after Petitioner was advised by her

adoptive mother in 1974 that she was or could be the

biological child of Hiriam “Hank” Williams. (A5).1

Hiriam “Hank” Williams (“Williams, Sr.”) was a

renowned country music artist and prolific songwriter,

authoring more than one hundred (100) musical composi-

tions (the “Works”) prior to his death. Pursuant to an

exclusive songwriting agreement, Williams, Sr. assigned

the Works and the copyrights therein to Acuff-Rose Pub-

lications, the predecessor to Respondents Acuff-Rose-

Opryland Music, Inc. (now Acuff-Rose Music, Inc.),

Milene-Opryland Music, Inc. (now Milene Music, Inc.),

Wesley H. Rose, Roy Acuff, Fred Rose Music, Inc. and

1 All references are to pages of the Appendix to Peti-

tioner’s Petition for Writ of Certiorari.

Milene Music, Inc. (the “Acuff-Rose Respondents”),

which published the vast majority of the Works and

owned the original term of copyright therein. (B4). In

1963, the Acuff-Rose Respondents acquired the interest of

Williams, Sr.’s then minor child, Respondent Randall

Hank Williams, Jr. (“Williams, Jr.”), in the renewal term

rights in the Works. Billie Jean Williams Berlin (“Berlin”)

is the widow of Williams, Sr. On May 28, 1969, Respon-

dent Aberbach Enterprises, Ltd. acquired Berlin’s interest

in the renewal term rights in the Works which she pos-

sessed as the widow of Williams, Sr. (B 3-4). The Berlin

renewal term rights in the Works are administered on

behalf of Respondent Aberbach by Respondent Chappell

Music Company (now Warner/Chappell Music, Inc.).

From and after 1971, as the original term of copyright

expired on each of the Works, the renewal term of copy-

right in such Works was duly obtained by or on behalf of

the Acuff-Rose Respondents and/or Respondent Aber-

bach, as the assignees of the Williams, Jr. and Berlin

renewal term rights in the Works. The Acuff-Rose

Respondents and Respondent Aberbach have exercised

dominion and control over the renewal term copyrights

in the Works since such rights were secured. (A13).

‘\

Petitioner was born on January 6, 1953 in Montgom-

ery, Alabama to Bobbie W. Jett, an unmarried woman.”

(A4). From her birth Petitioner lived with Mrs. Lillian

Stone, Williams, Sr.’s mother, and was adopted by Mrs.

2 Respondents assumed arguendo that Williams, Sr. was

Petitioner’s biological father for the purpose of their Motion

for Summary Judgment, the District Court’s granting of which

forms the basis for Petitioner’s appeal in this action. (B8).

.

Stone and her husband in December, 1954. Following

Mrs. Stone’s death in 1955, Petitioner was adopted by

George Wayne Deupree and Mary Louise Sims Deupree

of Mobile, Alabama, through the Alabama Department of

Pensions and Security (“Alabama P&S”). (A4).

In 1967, Audrey Mae Williams (Williams, Sr.’s ex-wife

and Williams, Jr.’s mother) and Williams, Jr. petitioned

the Circuit Court of Montgomery County, Alabama

requesting, inter alia, that the Court’s order approving the

sale of Williams, Jr.’s renewal term rights in the Works be

vacated, and that the Estate of Williams, Sr. be closed (the

“1967-68 proceedings”). In response to these petitions,

Petitioner’s existence was formally suggested to the court

and the question of any legal rights on her part as a

possible heir of Williams, Sr. with respect to Williams,

Sr.’s estate and the renewal term of copyright in the

Works was raised by Williams, Jr.’s Alabama guardian,

who also served as the administratrix of the Estate of

Williams, Sr. The Circuit Court appointed a guardian ad

litem to represent the interests of Petitioner and any other

minor person or persons who might have an interest in

the Estate of Williams, Sr. or the renewal copyrights

claimed by Williams, Jr. After investigation, the guardian

ad litem reported to the Court that Petitioner was the

only such minor person who could be identified. (A5,

B11).

Through the auspices of Alabama P&S, the guardian

ad litem contacted the Deuprees and advised them of the

1967-68 proceedings. After discussing the 1967-68 pro-

ceedings with the guardian ad litem, Mrs. Deupree told

him that they-were not interested in pursuing any claim

on behalf of Petitioner arising out of her possible

| relationship with Williams, Sr. Despite the Deuprees’

reques: to the contrary, the guardian ad litem vigorously

pursued Petitioner’s claims. (A5, B12).

After lengthy evidentiary proceedings, the Circuit

Court issued orders finding and concluding that (1) Peti-

tioner had no right of inheritance from Williams, Sr.

under copyright law, (2) Petitioner was not an heir of

Williams, Sr. and (3) Williams, Jr. was the sole heir of

Williams, Sr. (A5, B13).

In conjunction with Petitioner’s twenty-first birthday

in January, 1974, Mrs. Deupree told Petitioner that Wil-

liams, Sr. was or could be her biological father. Mrs.

Deupree also advised Petitioner that she was to pick up

certain funds from the Circuit Court of Montgomery

County, Alabama representing her homestead interest in

the Estate of Williams, Sr.’s mother, Mrs. Lillian Stone.

Following these disclosures, Petitioner began to seek

information relative to Williams, Sr. Among other things,

Petitioner read a book on the life of Williams, Sr. by

Roger Williams entitled Sing A Sad Song (the “Williams

Book”). The Williams Book includes references to the

1967-68 proceedings, which identify persons involved

therein, and makes reference to an illegitimate child,

allegedly fathered by Williams, Sr., who had been

adopted, as well as the possible rights of such child to an

interest in the renewal term of copyright in the Works. At

that time, Petitioner surmised that she might be that

child. (A5-6, B13-15).

In 1976, Petitioner met Nicholas Braswell, an attorney

in Montgomery, Alabama. Petitioner told Mr. Braswell -

that she was the daughter of Williams, Sr. Although Mr.

a

Braswell contacted the judge who presided over the

1967-68 proceedings on her behalf and gave Petitioner

sufficient information to contact him, she did not attempt

to do so until 1984. (A6, B15-16).

In 1979, Petitioner contacted Alabama P&S to obtain

information relative to her biological mother. Petitioner

told Mrs. Emogene Austin of Alabama P&S (1) what she

had been told by Mrs. Deupree of her relationsl.ip to

Williams, Sr., (2) that she knew of her identity, (3) that she

had read newspaper clippings about Willizms, Sr. and

knew that there had been mention of her in the papers at

the time of the 1967-68 proceedings and, significantly, (4)

that she did not want anyone to ever link her with

Williams, Sr. Approximately a year later, in December,

1980, George Wayne Deupree, Petitioner’s adoptive

father, told Petitioner the names of persons who had

participated in her adoption and the 1967-68 proceedings

and sent her a legal document and newspaper clippings

relative to the 1967-68 proceedings. (A6, B17).

Since they acquired their respective interests therein,

Respondents have dealt with and exercised dominion

over the copyrights in the Works, both original and

renewal term, as the owners of all of the rights therein.

Respondents issued licenses and entered into contracts

with respect thereto; received, disclosed and utilized

income from the exploitation of such copyrights and

included the income therefrom on their federal income

tax returns as provided by law; expended sums to exploit

the copyright in the Works during the renewal term and

otherwise have dealt with such rights as the sole owners

and beneficiaries thereof and changed their positions in

-

reliance thereon. (A13, B21-23). In May, 1985, Respon-

dents Rose and Acuff, as trustees in liquidation, sold their

interest in the renewal term of copyright in the Works to

Respondents Acuff-Rose-Opryland and Milene-Opryland,

making substantial warranties and representations rela-

tive to their ownership of the Williams, Jr. rights in the

renewal term of copyright in the Works and rendered

themselves possibly liable under indemnification in the

event of a breach of such representations and warranties.

(B22). All of these actions were taken in reliance on the

absence of any challenge by Petitioner to their rights in

the Works or the assertion by her of any claim to an

interest in any of the rights in the Works.

B. COURSE OF PRCCEEDINGS

1. FEDERAL PROCEEDINGS

Petitioner filed this action with the United States

District Court for the Southern District of New York on

September 12, 1985. The operative pleading in this action

is the Third Amended Complaint which was filed on or

about September 26, 1986, by which time exhaustive dis-

covery had been undertaken. The Third Amended Com- .

plaint was divided into two (2) claims for relief. The first

claim for relief, alleged against all Respondents, sought a

declaratory judgment that Petitioner is the natural daugh-

ter of Williams, Sr. and the owner of not less than an

undivided one-third (1/3) interest in the renewal term

rights in the Works and an appropriate interest in foreign

exploitation of the Works. Petitioner also sought nullifica-

tion of an order of the Alabama Circuit Court in the

1967-68 proceedings, an accounting, damages and the

imposition of a constructive or resulting trust with

respect to the income from the exploitation of the renewal

term rights in the Works. Petitioner’s second claim for

relief alleged a conspiracy to defraud Petitioner and a

breach of fiduciary duty against the Acuff-Rose Respon-

dents only, and sought damages and exemplary damages

against the Acuff-Rose Respondents according to proof at

trial. Respondent Williams, Jr. and the Aberbach Respon-

dents were not named as parties to the second claim for

relief. Petitioner also sought reasonable attorney’s fees

and the costs of suit. (A7, B6-7).

On March 16, 1987, after the Third Amended Com-

plaint had been answered and discovery completed, the

Respondents submitted a joint Motion for Summary

Judgment asserting, inter alia, that Petitioner’s claims

were barred by the copyright statute of limitations,

laches, equitable estoppel, waiver, res judicata and collat-

eral estoppel, and that Petitioner failed to state a cause of

action because she did not have the status of a child of

Williams, Sr. under the Copyright Acts of 1909 and 1976

and applicable Alabama law. For purposes of such

Motion only, it was assumed arguendo that Petitioner was

the biological child of Williams, Sr. On March 19, 1987,

Petitioner moved for partial summary judgment on her

claim that she is Williams, Sr.’s natural daughter and that

she is entitled to an undivided one-third (1/3) interest in

all renewal rights in the Works. On March 20, 1987,

Respondents Berlin, Chappell and Aberbach moved for

summary judgment and dismissal of the claims against

them on the ground that even if Petitioner were to prevail

on her first cause of action, Berlin is nevertheless entitled

under copyright law to a one-half ('/2) interest in the

Works as the widow of Williams, Sr. and Williams, Sr.’s

children would only be entitled jointly to a one-half (*/2)

interest therein. Thus, the rights of the Aberbach Respon-

dents in the Works would not be affected by Petitioner’s

Complaint. (B6-7).

The District Court granted the Respondents’ joint

Motion for Summary Judgment and dismissed the Third

Amended Complaint in its entirety based upon the doc-

trine of laches, holding that Petitioner had unreasonably

delayed in asserting her claims and that Respondents had

been materially prejudiced thereby. (A8, B7). The District

Court did not reach or address the other grounds

asserted by the Respondents in their joint Motion for

Summary Judgment or the questions raised in either Peti-

tioner’s partial summary judgment motion or in the sum-

mary judgment motion submitted by Respondents Berlin,

Chappell and Aberbach. (B7).

Petitioner perfected an appeal of the District Court’s

decision to the United States Court of Appeals for the

Second Circuit. Pursuant to an Opinion dated April 21,

1989, the Second Circuit affirmed the judgment of the

District Court that Petitioner’s delay in filing suit until

September 1985--was unexcused and had prejudiced

Respondents. (A14).

Petitioner submitted a Petition for Rehearing to the

Second Circuit dated May 4, 1989, which was denied by

an Order dated May 23, 1989. Petitioner subsequently

filed a Motion for Recall of Mandate and Order Granting

Leave to File Petition for Rehearing and Rehearing in

Banc dated July 31, 1989. The Motion for Recall was

granted on August 24, 1989. Petitioner submitted a Peti-

tion for Rehearing and Suggestion for Rehearing In Banc,

dated september 6, 1989. Briefs in opposition to such

petition were filed by all Respondents. Such Petition is

currently pending before the Second Circuit.

2. ALABAMA STATE COURT PROCEEDINGS

In her Petition for Writ of Certiorari Petitioner has

alternately asserted that the decision of the Second Cir-

cuit conflicts with or will cause confusion regarding an

opinion of the Supreme Court of Alabama in the case of

Stone vs. Gulf American Fire and Casualty Co., et al., Case

No. 87-269, dated July 5, 1989 (the “Alabama Opinion”).

Although the Alabama Opinion, which concerns the Wil-

liams, Sr. estate, is irrelevant to this action regarding an

entitlement to an interest in renewal copyrights since

such rights did not flow through the Estate of Williams,

Sr.3, analysis of such allegation will be aided by a succinct

statement of the Alabama Court proceedings.

The Alabama Opinion arose from an action before the

Circuit Court of Montgomery County, Alabama instituted

by Hank Williams, Jr., Roy Acuff and Wesley Rose against

3 Renewal copyrights under both the Copyright Acts of

1909 and 1976 could never be an asset of a deceased author’s

estate if a widow or children survive into the renewal period,

i.e. the statutory period during which a copyright could be

renewed. Frederick Music Co. v. Sickler, 708 F.Supp. 587

(S.D.N.Y. 1989). Since both Williams, Jr. and Berlin are still

living, the renewal copyrights of Williams, Sr. never became an

asset of the Estate of Williams, Sr. or subject to the jurisdiction

of the Alabama courts.

10

Petitioner regarding her alleged entitlement to share in

the assets and proceeds of the Estate of Williams, Sr. (A7).

Petitioner counterclaimed against Williams, Jr. for a

determination of her status as a child of Williams, Sr. and

filed a third party indemnity action against Irene Smith

and Robert B. Stewart, as the administrators of the Wil-

liams, Sr. estate, Stewart and his law firm, as the attor-

neys for the estate, and the insurance company which

issued the administrators’ bonds. (C4). Williams, Jr.,

Acuff and Rose moved for summary judgment on the

initial action and Petitioner’s counterclaim-on the

grounds of certain Alabama statutes, res judicata, collat-

eral estoppel, laches, equitable estoppel and waiver. The

third party defendants also moved for summary judg-

ment on the third party indemnity action. The trial court

granted all motions for summary judgment “on all

points”, but held that, although not entitled to share in

the estate, Petitioner was the illegitimate daughter of

Williams, Sr.

Petitioner did not appeal the granting of summary

judgment on the initial action or her counterclaim, the

only actions to which any Respondents herein were par-

ties, and such judgments became final.

Petitioner elected to appeal only the granting of sum-

mary judgment on her third party indemnity action

against Stewart’s law firm, Smith and the bonding com-

pany, none of whom are parties to this action. It is the

appeal from the summary judgment on the third party

indemnity action, in which none of the Respondents were

involved, that gave rise to the Alabama Opinion.* (C6).

4 The Alabama Supreme Court issued the Alabama Opin-

ion on July 5, 1989. Within the time required by Alabama law,

(Continued on following page)

11

Neither the Aberbach Respondents nor the Acuff-Rose

Respondents (except Acuff and Rose in their capacity as

trustees) were parties to or are bound by any decisions in

the Alabama action.

y%

4

V.

SUMMARY OF ARGUMENT

Petitioner has alleged that the decision of the Court

of Appeals conflicts with prior decisions of this Court, as

well as the decision of a state court of last resort on a

federal question and that the decisions of the District

Court and the Court of Appeals have so far departed

from the accepted and usual course of judicial proceed-

ings as to call for an exercise of this Court’s power of

supervision. None of the allegations of Petitioner consti-

tute sufficiently special and important reasons to warrant

the review of this Court and the granting of Petitioner’s

Petition for Writ of Certiorari.

(Continued from previous page)

three of the parties to that appeal, including Petitioner, submit-

ted Applications for Rehearing and/or Motions to Extend and

Clarify the Alabama Opinion. In addition, Williams, Jr.,

although not a party to such appeal, has submitted a Petition

for Leave to Appear for Purpose of Seeking to Vacate and

Modify Opinion of July 5, 1989 and for Stay of Issuance of

Certificate of Judgment Pending Further Proceedings. The

Supreme Court of Alabama has not acted upon the respective

submissions and has not issued a Certificate of Judgment with

respect to the Gulf American case. Thus, the opinion of July 5,

1989 is not a final decision of the Alabama Supreme Court.

12

Petitioner alleges as her first reason for granting

review that the decision of the Court of Appeals affirm-

ing a bar of Petitioner’s claim on the ground of laches

conflicts with decisions of this Court by engaging in

improper judicial legislation. None of Petitioner’s refer-

enced decisions deals with the application of the federal

rule of laches. To sustain this ground would be tanta-

mount to prohjbiting the bar of any statutory right on the

time-honored ground of laches, the reverse of which has

been previously recognized by this Court.

As her second reason for granting review, Petitioner

has alleged that the decision of the Court of Appeals

conflicts with a prior decision of this Court regarding

limitation of the bar of laches so as not to bar any pro-

spective relief and that such decision conflicts with or

causes confusion with respect to a decision of the

Supreme Court of Alabama. There is no conflict with the

prior decision of this Court since such decision is readily

distinguishable from the present action in that it

addressed an on-going infringement of the plaintiff’s

rights whereas this action is concerned with a declaration

of entitlement to such rights. The Court of Appeals deci-

sion could only conflict with or cause confusion regard-

ing the portions of the opinion of the Supreme Court of

Alabama that addressed renewal copyrights. Those por-

tions of the Alabama Opinion are, at best, dicta and

wholly gratuitous, since under the Second Amended

Complaint in the Alabama action, which was the opera-

tive pleading therein and which was mistakenly not refer-

enced in the Alabama Opinion, renewal copyrights were

not a part of the subject matter of the action; such

renewals did not flow through the Estate of Williams, Sr..

13

and are, thus, outside of the jurisdiction of the Alabama

Supreme Court. In addition, the referenced opinion of the

Supreme Court of Alabama is not a final decision of such

Court. See, notes 3 and 4, supra.

Lastly, Petitioner alleges that the decisions of the

District Court and the Court of Appeals have so far

departed from the accepted and usual course of judicial

proceedings as to call for an exercise of this Court’s

power of supervision. Petitioner has accepted the

detailed statement of facts found by the District Court

after review of voluminous documentation submitted by

the parties with respect to the three (3) motions for sum-

mary judgment which were before it. There is, therefore,

no genuine issue as to any material fact. The District

Court and the Court of Appeals applied those undisputed

facts to the governing federal law of laches consistent

with prior decisions of this Court in accordance with the

accepted and usual course of judicial proceedings.

There are no special and important reasons for

review of this matter on writ of certiorari and the petition

should be denied.

VI.

ARGUMENT

A. THE COURT OF APPEALS DECISION DOES NOT

CONSTITUTE JUDICIAL LEGISLATION OR CON-

FLICT WITH PRIOR DECISIONS OF THE

SUPREME COURT NV

The Court of Appeals correctly applied the time-

honored doctrine of laches to the facts of the instant case

4

14

when it aff.rmed the District Court’s dismissal of Peti-

tioner’s Third Amended Complaint. Petitioner asserts as

her first reason for granting her Petition for Writ of

Certiorari that application of laches to this statutory

action constitutes impermissible judicial legislation and

destroys the certainty and uniformity of the Copyright

Act intended by Congress. If Petitioner’s argument is

adopted, laches would not be applicable to any cause of

action based upon a federal statute. Such is certainly not

the case. : |

a

The reported decisions are replete with circum-

stances where laches was applied to statutory actions.

Potash Cc of America v. International Mineral & Chemical

Corp., 213 F.2d 153 (10th Cir. 1954); Lingenfelter v. Keystone

Consol. Industries, Inc., 691 F.2d 339 (7th Cir. 1982). Laches

has been specifically recognized as a defense to copyright

actions. Lottie Joplin Thomas Trust v. Crown Publishers, Inc.,

592 F.2d 651 (2d Cir. 1978); New Era Publications Interna-

tional, ApS. v. Henry Holt & Co., 873 F.2d 576 (2d Cir.

1989). Indeed, the Supreme Court recognized the appli-

cability of laches to statutory actions in Holmberg v.

Ambrecht, 327 U.S. 392, 396, 66 S. Ct. 582, 584, 90 L.Ed.

743, 747 (1946), which is cited by Petitioner and the

Second Circuit. (A9). Application of the federal doctrine

of laches does not create uncertainty or a lack of unifor-

mity, but, just as Justice Douglas stated in his concurring

opinion in Burnett t>-New York Central R.R. Co., 380 U.S.

424, 437, 85S. Ct. 1050, 13 L. Ed. 2d 941, 950 (1965), “(ihe

long-established federal rule of laches, .. . ., is uncompli-

cated, uniform and directly responsive to the problem.”

15

Regardless of the recognition of the applicability of

laches to federal question actions, this cause does not

merit the consideration of ihis Court. The first ground

cited by Petitioner fails to meet the standard of the “spe-

cial and important reasons” for granting a writ of cer-

tiorari required by Supreme Court Rule 17.1. “Special and

important reasons” imply a reach to a problem beyond

the academic or episodic. Rice v. Sioux City Cemetery, 349

U.S. 70, 74, 15 S. Ct. 614, 99 L.Ed. 897, 901. (1955).

Although this action is based upon factual ~-umstances

which are more challenging than most fictional scenarios

created by law school professors to pique the academic

interest of their students, given the application of laches

to federal question actions generally, it does not pose a

problem beyond the academic or episodic.

Petitioner also asserts a conflict with this Court’s

decision in Miller Music Corp. v. Charles N. Daniels, Inc.,

362 U.S. 373, 80 S.Ct. 792, 4 L.Ed.2d 804 (1960). There is

no such conflict. The Miller Music case dealt with an

interpretation of the renewal rights clause of the copy-

right act as it applies to executors of a deceased author’s

estate. No question of laches arose in that action. The

mere fact that rights are derived from a statute does not

prevent the application of the federal rule of laches. See,

Holmberg v. Ambrecht, supra.

Petitioner’s fitet asserted reason tor granting a writ

of certiorari is insufficient to merit this court’s consider-

ation and her petition should be denied.

16

B. THE COURT OF APPEALS APPLICATION OF THE

FEDERAL RULE OF LACHES DOES NOT CON-

FLICT WITH DECISIONS OF THE SUPREME

COURT OR PRODUCE CONFUSION WITH THE

OPINION OF THE ALABAMA SUPREME COURT

IN STONE V. GULF AMERICAN CASUALTY

As a second reason for granting her Petition for Writ

of Certiorari Petitioner asserts that the decision of the

Second Circuit conflicts with prior decisions of this Court

and with a decision of the court of last resort of a state.

The cases cited by Petitioner are clearly distinguishable

from the instant action and no conflict exists between the

decision of the Court of Appeals and prior decisions of

this Court, or with the opinion of the Alabama Supreme

Court, even if it was a final decision.

The case of Menendez v. Holt, i128 U.S. 514, 9 S.Ct. 143,

32 L.Ed. 526 (1888), cited by Petitioner and the copyright

cases referenced in support thereof all arose out of

actions for copyright and trademark infringement. In

each of those cases there was a continuing infringement

of the respective plaintiff’s rights in trademarks and

copyrights which such courts did not feel justified the

denial of prospective relief despite the laches of the par-

. ticular plaintiffs. This cause is not an infringement action

relative to an individual trademark or copyright, but is a

‘declaratory judgment action seeking to perfect a claim to

an entitlement to an interest in the renewal term of copy-

_Tight in the works of a deceased author. Unlike the plain-

tiffs in Menendez and the other cases cited by Petitioner,

Petitioner did not seek redress for a continuing infringe-

ment of her copyright, but sought to establish a claim to

an interest in copyrights after a period of delay which

17

both the District Court and the Court of Appeals found to

be unreasonable and prejudicial to Respondents.

This Court has long recognized that prospective

relief may be barred by laches under proper circum-

stances, even in infringement actions. French Kepubiic v.

Saratoga Vichy Spring Co., 191 U.S. 427, 24 S.Ct. 145, 48

L.Ed. 247 (1903). This position was also expressed in

Menendez itself. Menendez, 128 U.S. at 524. Although not

specifically addressing this issue, the District Court and

the Court of Appeals found that the undisputed facts and ~

circumstances of this action warranted a total dismissal] of

Petitioner’s claim. It is totally proper for a court to deny a

plaintiff’s claims, when a plaintiff has slept on his rights.

Burnett, 380 U.S. at 428 (emphasis added).

In the questions presented and the argument portions

of her petition Petitioner alternately asserts that the deci-

sion of the Court of Appeals conflicts or causes confusion

with the opinion of the Alabama Supreme Court in Stone

v. Gulf American Casualty, even though Petitioner recog-

nizes in her Petition that the July 5, 1989 opinion is not

final. See, Petition for Writ of Certiorari, p. 47. Any pre-

sumed conflict or confusion with the Alabama Opinion is

not caused by the decision of the Second Circuit, but by

the attempted rulings of the Alabama Supreme Court on

matters outside of the scope of the issues before it on

appeal. The Alabama Opinion states that Petitioner is

entitled to an interest in the renewal term of copyright in

the Works. (C100-101). Such rights are precisely what

Petitioner is seeking in this action.

Not only has the Alabama Supreme Court spoken on

issues not presented to it by the pleadings in that action,

18

but, had such issues come before it, it would have lacked

subject matter jurisdiction to decide such issues. As Peti-

tioner has recognized in her Third Amended Complaint

and numerous other documents in this action, when a

determination of copyright rights requires interpretation

of the copyright statutes, as in the instant case, it is

within the exclusive jurisdiction of the federal courts and

any attempted disposition or determination thereof by a

court of the states is outside of that court’s jurisdiction

and of no consequence or affect. 28 U.S.C. Sec. 1338(a).

See also, T.B. Harms Co. v. Eliscu, 339 F.2d 823 (2d Cir.

1964). As any final decision of the Alabama Supreme

Court with respect to the renewal term of copyright in the

Works is outside of that court’s jurisdiction, the finding of

the Court of Appeals cannot be said to conflict with a

valid decision of such court or cause confusion with

respect to the subject matter of this action. Additionally,

as noted above, the interest in the renewal term of copy-

right in the Works did not and could not become part of

the Williams, Sr. estate over which the Alabama Supreme

Court purportedly asserted jurisdiction in the Alabama

Opinion.

> The Alabama Opinion arises out of an appeal of a third

party indemnity action against parties with no interest in the

renewal term of copyright in the Works. The action to which

any of the Respondents was a party was decided in their favor

and not appealed by Petitioner. Therefore, there is a substantial

question, which has been raised with the Alabama Supreme

Court, but not acted upon, as to whether it has jurisdiction to

reach any of the questions with respect to the rights of persons

who were not parties to the third party indemnity action which

was the only action appealed.

— 19

C. THE DECISIONS OF THE DISTRICT COURT AND

THE COURT OF APPEALS WERE RENDERED IN

ACCORDANCE WITH ACCEPTED AND USUAL

JUDICIAL STANDARDS AND PROCEDURES

Stripped of its rhetoric, Petitioner asserts as her final

reason for granting her Petition for Writ of Certiorari that the

decisions of the District Court and the Court of Appeals

departed so markedly from the accepted and usual course of

judicial proceedings, or so far sanctioned such a departure

by a lower court, as to call for the exercise of this Court’s

power of supervision. Supreme Court Rule 17.1(a). Such a

position is not supportable by the record nor do the actions

of the District Court or the Court of Appeals rise to the level

of departure from accepted and usual course of proceedings

which this Court has determined to be sufficient grounds for

granting review. Thermtron Products, Inc. v. Hermansdorfer, 423

US. 336, 96 S.Ct. 584, 46 L.Ed.2d 542 (1976); New York City

Transit Authority v. Beazer, 440 U.S. 568, 570, 99 S.Ct. 1355, 59

L.Ed.2d 587, 593 (1979); Hagans v. Lavine, 415 U.S. 528, 533, 94

S.Ct. 1372, 39 L.Ed.2d 577, 585 (1974).

The District Court, whose jurisdiction was invoked by

Petitioner herself, giving Petitioner her full due process

rights, based its decision to grant Respondents’ joint Motion

for Summary Judgment upon the arguments of counsel, the

pleadings, briefs, affidavits and exhibits submitted to the

District Court. Over four hundred (400) pages of briefs were

submitted to the District Court by the parties with respect to

the various motions for summary judgment considered by it

and, of these, almost two hundred fifty (250) pages

addressed themselves to Respondents’ joint Motion for Sum-

mary Judgment. Over one thousand (1,000) pages

20

of affidavits, documents and extracts from discovery

responses and depositions were submitted in support of

the motions. From such submissions, the District Court

found the admitted and uncontroverted facts which it

held supported a determination that Petitioner had

unreasonably delayed in filing this action and that such

delay materially prejudiced Respondents. (B23-37).

Although Petitioner complains that she was denied a

trial in this matter, in her Opening Brief before the Court

of Appeals, Petitioner stated that she took no issue with

the detailed statement of the facts upon which the District

Court based its decision, but merely objected to the appli-

cation of such facts to applicable law. Petitioner now

complains for the first time about the basis for the facts

determined by the District Court. The Court of Appeals

reviewed those same facts and approximately one hun-

dred twenty-nine (129) pages of briefs and eight hundred

(800) pages of Joint Appendix and, in affirming the Dis-

trict Court, concluded that .. . “Even granting to Ms.

Stone’s situation the fullest stretch of sympathy, her own

delay and procrastination in the end bars her suit.”

(A3-4).

Since Petitioner’s acceptance of the detailed state-

ment of facts as found by the District Court satisfies the

first criteria for summary judgment that there is no genu-

ine issue as to any material fact, any supervisory review

of the decisions of the District Court and the Court of

Appeals would be limited to the application of such facts

to the federal law of laches.

Respondents submit that the numerous decisions

with respect to the applicable federal law of laches cited

by the District Court and the Court of Appeals provide

21

more than adequate support for the reasonableness and

propriety of the decision of the District Court in granting

Respondents’ joint Motion for Summary Judgment and

the Court of Appeals affirmation thereof in light of the

accepted and usual course of judicial proceedings. See

e.g., Matsushita Elec. Indus. To. v. Zenith Radio Corp., 475

U.S. 574, 106 S. Ct. 1348, 1355-57, 89 L.Ed.2d 538 (1986);

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct.

2505, 2510-12, 91 L.Ed.2d 202 (1986); Celotex Corp. v. Cat-

rett, 477 U.S. 317, 106 S. Ct. 2548, 2552-54, 91 L.Ed.2d 265

(1986); First National Bank of Arizona v. Cities Service Co.,

391 U.S. 253, 288-90, 88 S. Ct. 1575, 20 L.Ed.2d 569 (1968),

aff’g 361 F.2d 671 (2d Cir. 1966); Knight v. U.S. Fire Insur-

ance Co., 804 F.2d 9, 11-12 (2d Cir. 1986), cert. denied, 480

U.S. 932, 107 S. Ct. 1570, 94 L.Ed.2d 762 (1987); Argus Inc.

v. Eastman Kodak Co., 801 F.2d 38, 42 (2d Cir. 1986), cert.

denied, 479 U.S. 1088, 107 S. Ct. 1295, 94 L.Ed.2d 151

(1987); Lois Sportswear, U.S.A., Inc. v. Levi Strauss & Co.,

799 F.2d 867, 876 (2d Cir. 1986). a

As noted by the Court of Appeais (A8), a ruling on

the applicability of laches is overturned only when it can

be said to constitute an abuse of discretion. See, Czaplicki

v. The S.S. Hoegh Silvercloud, 351 U.S. 525, 534, 76 S. Ct.

946, 100 L.Ed 1387 (1956); Gardner v. Panama R.R. Co., 342

US. 29, 30, 72 S.Ct. 12, 96 L.Ed. 31 (1951). In an obviously

independent review, even construing the record in the

light most favorable to Petitioner (A8), the Court of

Appeals found no abuse of discretion by the District

Court and found that Petitioner had unreasonably

delayed in filing this action to the prejudice of Respon-

dents. (A14). Therefore, a review of such decisions by this

22

Court is not required in the exercise of its supervisory

powers.

,%

—

VII.

CONCLUSION

This Court may only review the decision of the Court

of Appeals for the Second Circuit if there are special and

important reasons therefor. Despite Petitioner’s

attempted obfuscation of the material facts underlying

the decisions of both the District Court and the Court of

Appeals, the decisions heretofore rendered in this case do

not conflict with applicable decisions of this Court or a

state court of last resort, nor have they departed from the

accepted and usual course of judicial proceedings. The

questions presented for review by the Petitioner are not

special or important to anyone other than the parties to

this action in any manner other than natural academic

curiosity and speculation. For these reasons, Respondents

respectfully request that Petitioner’s Petition for Writ of

Certiorari be denied.

Respectfully Submitted,

ALAN L. SHULMAN,

Counsel of Record

SILVERMAN, SHULMAN &

SLOTNICK, P.C.

136 East 57th Street

New York, NY 10022

(212) 758-2020

23

OF COUNSEL:

Rosert J. WARNER, JR.

RICHARD H. FRANK, JR.

DEARBORN & EWING

One Commerce Place

Nashville, TN 37239

(615) 259-3560

W. MicHaAeEL MiLom

CHRISTIAN A. HorRsNELL

Wyatt, TARRANT, Comss,

GiLBert & MILomM

1100 17th Avenue, South

Nashville, TN 37212

(615) 320-5551

Attorneys for

Respondents

Hank Williams, Jr.,

Wesley H. Rose,

Roy Acuff, Fred Rose

Music, Inc. and

Milene Music, Inc.

LAWRENCE I. Fox

Counsel of Record

Bercer & STEINGUT

600 Madison Avenue

New York, NY 10022

(212) 980-1400

Of COUNSEL: -

STEPHEN K. RusH

Farris, WARFIELD & KANADAY

Third National Financial Center

Nashville, TN 37219

(615) 244-5200

Attorneys for

Respondents Acuff-Rose-

Opryland Music, Inc. and

Milene-Opryland Music, Inc.

24

THomas R. Levy

Counsel of Record

300 East 42nd Street

New York, NY 10017

(212) 682-6110

Attorney for

Respondents Billie jean

Williams Berlin,

Chappell Music Company

and Aberbach Enter-

prises, Ltd.