IN THE UNITED STATES DISTRICT COURT FOR THE 

SOUTHERN DISTRCIT OF FLORIDA

Case No.: 2:22-cv-14296-AMC

AFFORDABLE AERIAL PHOTOGRAPHY, INC.,

 Plaintiff,

v. 

 

PROPERTY MATTERS USA, LLC and 

HOME JUNCTION, INC.

 Defendants.

 / 

DEFENDANT PROPERTY MATTERS USA, LLC’S REPLY IN SUPPORT OF ITS

MOTION FOR ATTORNEYS’ FEES AND COSTS

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TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .......................................................................................................... ii

RENEWED REQUEST FOR ORAL ARGUMENT ..................................................................... iii

ARGUMENT ...................................................................................................................................2 

I. PROPERTY MATTERS IS THE PREVAILING PARTY AS A MATTER OF LAW BECAUSE AAP’S 

CLAIMS ARE BARRED FROM BEING REFILED BASED ON THE COPYRIGHT ACT’S STATUTE OF 

LIMITATIONS .........................................................................................................................2 

II. AAP PURSUED BASELESS AND FRIVOLOUS CLAIMS AGAINST PROPERTY MATTERS IN BAD 

FAITH AND PRECEDENT AND THE GOALS OF THE COPYRIGHT ACT FAVOR AWARDING PROPERTY MATTERS ITS FULL COSTS, INCLUDING REASONABLE ATTORNEYS’ FEES FOR DEFENDING AGAINST THOSE CLAIMS ................................................................................................6 

III. AAP’S ARGUMENTS AS TO THE REASONABILITY OF FEES ARE UNSUPPORTABLE IN FACT 

AND LAW ..............................................................................................................................8 

CONCLUSION ................................................................................................................................9 

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TABLE OF AUTHORITIES

Page(s)

Cases

Bonner v. Prichard

 661 F.2d 1206 (11th Cir. 1981) ....................................................................................................2 

Calhoun v. Lillenas Pub.

 298 F.3d 1228 (11th Cir. 2002) ....................................................................................................3 

Foudy v. Indian River Cnty. Sheriff’s Office

 845 F.3d 1117 (11th Cir. 2017) ................................................................................................5, 6 

Jim Arnold Corp. v. Hydrotech Sys., Inc.

 109 F.3d 1567 (Fed. Cir. 1997).................................................................................................4, 5 

Petrella v. MGM

 572 U.S. 663 (2014) ......................................................................................................................4 

Prather v. Neva Paperbacks, Inc.

 446 F.2d 338 (5th Cir. 1971) ....................................................................................................2, 3 

Scholastic Entm’t Inc. v. Fox Entm’t Group, Inc.

 336 F.3d 982 (9th Cir. 2003) ........................................................................................................4 

Topolos v. Cadewey

 698 F.2d 991 (9th Cir. 1983) ........................................................................................................4 

Webster v. Dean Guitars

 955 F.3d 1270 (11th Cir. 2020) ................................................................................................3, 4 

U.S. Codes

17 U.S.C. 

§ 101..............................................................................................................................................4 

§ 507(b) .........................................................................................................................................4

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RENEWED REQUEST FOR ORAL ARGUMENT

The Defendant Property Matters USA, LLC respectfully renews its requests that oral argument be granted on the instant Motion. Defendant continues to believe that oral argument would 

assist the Court in ruling on the issues presented herein, particularly on the issues of dispute raised 

in Plaintiff Affordable Aerial Photography, Inc.’s Opposition, including (1) the correct application 

of Eleventh Circuit precedent in applying the Copyright Act’s statute of limitations, including any 

factual findings, and (2) correct application of Eleventh Circuit precedent in determining whether 

to award fees under the Copyright Act.

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Keeping with the theme of this action, AAP’s Opposition (ECF No. 30, “Opp.”) is internally inconsistent and contradictory. AAP’s main arguments are legally and factually unsupported, and its ad hominem attacks on the undersigned reflect an attempt to distract from its own 

ethical violations highlighted by the underlying Motion.

AAP does not dispute the critical facts: (1) the alleged infringing act occurred by at least 

2017; (2) AAP knew before filing the action the alleged infringing act occurred by at least 2017; 

(3) the evidence of the alleged infringement was publicly available and never concealed; and (4) 

AAP dismissed its claims against Property Matters in 2022, knowing that the alleged infringement 

occurred more than three (3) years before dismissal. See generally, Opposition. Moreover, AAP 

does not dispute that it threatened to sue Property Matters for the alleged infringement of the copyright in a single photograph unless Property Matters paid it the extortionate sum of $35,000.00—

based on threats of recovery that would be barred as a matter of law. See generally, ibid. Going 

even further, AAP now concedes that it filed this action against Property Matters despite having 

both actual and constructive knowledge that the allegedly infringing website was created by coDefendant Home Junction, Inc., and the allegedly infringing act was therefore not performed by 

Property Matters.

Notably, AAP’s Opposition ignoresthe Eleventh Circuit’s precedent cited in Property Matters’ Motion and argues that the number of active websites allows its claim that it could not have 

actually known of the alleged infringement before 2021—despite the evidence being open and 

public since at least 2017. But Eleventh Circuit precedent holds that even if a “discovery rule” is 

applied, a party is on constructive knowledge of an injury as of the date that injury occurred. AAP 

has no response to that point.

AAP and its counsel attempt to suggest that AAP—as the Plaintiff—is the “victim” here, 

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that it should be free to file improper lawsuits against the wrong party as “leverage” against the 

correct party, and then avoid liability for the fees it wrongfully forced the innocent party—Property 

Matters—to incur. But one goal of the Copyright Act providing for fee-shifting is to encourage 

vigorous defenses when plaintiffs improperly file suit. That is the case here. AAP wrongfully 

filed suit against Property Matters, knowing it was suing the wrong party and lacking any evidence 

to support its claims against Property Matters. It then maintained the action despite Property Matters raising those issues and inviting dismissal without any liability. AAP vexatiously dragged out 

the action to force Property Matters to incur fees while it demanded extortionate settlement 

amounts it knew it was not entitled to. 

AAP’s Opposition, replete with false representations, either ignores or intentionally misstates (1) Property Matters’ Motion, (2) the precedent on which it purports to rely, and (3) the facts 

of this case. Factually and legally flawed, the internally inconsistent Opposition highlights AAP’s 

bad-faith litigation tactics and demonstrates why fees should be awarded to Property Matters. In 

keeping with precedent and the goals of the Copyright Act, Property Matters’ motion should be 

granted, and it should be awarded the fees it was wrongfully forced to incur in this action.

ARGUMENT

I. PROPERTY MATTERS IS THE PREVAILING PARTY AS A MATTER OF LAW BECAUSE 

AAP’S CLAIMS ARE BARRED FROM BEING REFILED BASED ON THE COPYRIGHT ACT’S 

STATUTE OF LIMITATIONS.

As addressed in Property Matters’ Motion, AAP’s claims are barred from being refiled 

because the Copyright Act’s statute of limitations expired prior to dismissal. Mot. at 5-12. As 

Property Matters explained, Eleventh Circuit precedent holds that the limitations period begins to 

run when the alleged act of infringement occurred. Mot. at 6-8; see also Prather v. Neva 

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Paperbacks, 446 F.2d 338, 339-41 (5th Cir. 1971)1

. Property Matters acknowledged in its Motion

that courts in this District “have applied the discovery rule articulated in Sieger Suarez,” but explained (1) that those opinions failed to consider the Eleventh Circuit’s precedential Prather opinion and (2) that recent Supreme Court and Eleventh Circuit precedent have flatly rejected the rationale and reasoning for applying a “discovery rule.” Mot. at 6-8. Tellingly, AAP completely 

avoids addressing the Eleventh Circuit’s Prather precedent throughout its Opposition. 

Instead, AAP relies on those prior district court holdings and then improperly asserts that 

Eleventh Circuit “precedent” requires applying the “discovery rule” to Copyright claims, Opp. at 

1, 5-10, an argument squarely rejected by Prather. But the Eleventh Circuit “holdings” AAP 

purportedly cites do not support its arguments. AAP quotes dicta from within the concurrence in 

Calhoun v. Lillenas Pub., 298 F.3d 1228 (11th Cir. 2002), that “[t]he limitations period may be 

triggered when a plaintiff knows or, in the exercise or reasonable diligence, should have known 

about an infringement,” id. at 1236 (emphasis added), misrepresenting that quote as a “holding.” 

Compare Opp. at 5-7 (“These courts have all held that a discovery rule applies . . . .”) with Calhoun, 298 F.3d at 1236 (not addressing the issue even within the concurrence). Judge Birch’s 

concurrence in Calhoun included that quote for reference in addressing a different issue and used 

the phrase “may” indicating that it was not something being decided in that case. 298 F.3d at 1236. 

That quote is also consistent with Prather, which applies the “injury rule” to the copyright infringement claim but allows for a plaintiff to establish a basis for tolling the limitations period. 

446 F.2d at 339-41.

Next, AAP inappositely relies on Webster v. Dean Guitars, 955 F.3d 1270 (11th Cir. 2020)

which addressed a different issue: when does a claim for copyright ownership accrue. Id. at 1275-

1 Adopted as precedent. Bonner v. Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc).

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76. There, the Eleventh Circuit rejected the Sixth and Ninth Circuit’s approach “that a copyright 

ownership claim accrues when ‘there is a “plain and express repudiation” of ownership by one 

party as against the other,’” and adopted the approach of the First, Second, Fifth, and Seventh 

Circuits in holding “that copyright ownership claims accrue ‘when the plaintiff learns, or should 

as a reasonable person have learned, that the defendant was violating his rights.” Ibid. (citing 

cases). 

But the Copyright Act does not provide a cause of action for copyright ownership, see 17 

U.S.C. § 101, et seq., and Webster did not address or analyze that issue. Therefore, the limitations 

period in § 507(b) was inapplicable to the ownership claim at issue in Webster. See Scholastic 

Entm’t Inc. v. Fox Entm’t Group, Inc., 336 F.3d 982, 985-89 (9th Cir. 2003) (explaining that copyright ownership is not a cause of action “arising under” the Copyright Act and that state law fills 

the gaps to determine post-creation ownership issues); see also Topolos v. Cadewey, 698 F.2d 991, 

993-94 (9th Cir. 1983) (“The court concluded that the ‘true thrust’ of Topolos’ action was resolution of the ownership of the copyright, which required a determination under state law of the rights 

and obligations arising under the publishing contract. . . . In an action for infringement plaintiff 

necessarily must establish ownership of a valid copyright and copying by the defendant. Ownership of the copyright is therefore always a threshold question. Only when such ownership is the 

sole question for consideration are federal courts without jurisdiction.”) (internal citations omitted); Jim Arnold Corp. v. Hydrotech Sys., Inc., 109 F.3d 1567, 1572 (Fed. Cir. 1997) (“the question 

of who owns the patent rights and on what terms typically is a question exclusively for state 

courts”).

Further, Webster distinguished accrual of an ownership claim from an infringement claim, 

while favorably citing that “[i]n Petrella, the Supreme Court stated that a copyright infringement 

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claim ‘ordinarily accrues when a plaintiff has a complete and present cause of action,’ that is, 

‘when an infringing act occurs.’” Id. at 1275 (citing Petrella v. MGM, 572 U.S. 663, 670 (2014))

(emphasis added). Webster distinguished Petrella because Webster was addressing copyright 

ownership, not a claim for copyright infringement. Id. at 1275-77. The reasoning in Webster was 

that whereas an infringement claim accrues each time an infringing act occurs, an ownership claim 

accrues only once. Id. at 1275-77. Contrary to the express analysis in Webster, AAP argues here

that copyright infringement claims accrue based on the “discovery rule,” when Webster expressly 

distinguished ownership from copyright infringement claims.

As explained in Property Matters’ motion, traditional rules of statutory construction and 

the precedent of the Supreme Court and Eleventh Circuit state that a copyright infringement claim 

“accrues,” and the limitations period beings, when the allegedly infringing act occurs. Mot. at 6-

8. AAP provides no genuine response, other than reliance on cases in this district which applied a 

discovery rule without consideration of those fundamental principles and precedent. Opp. at 4-7. 

AAP further ignores Property Matters’ next argument, that AAP is charged with constructive 

knowledge of the alleged infringement as of the date the allegedly infringing act was publicly 

available. Mot. at 8-12.

In Foudy v. Indian Rive Cnty. Sheriff’s Office, 845 F.3d 1117 (11th Cir. 2017) (“Foudy 

II”), the Eleventh Circuit explained that “though many [Eleventh Circuit] cases profess adherence 

to the discovery rule, the constructive knowledge element can cause it to function as an occurrence rule, holding a plaintiff ‘should have known’ about an injury at the moment it occurs.” Id.

at 1122-23 (collecting cases) (emphasis added). AAP provides no response to this argument or 

precedent. See generally Opposition (failing to address this case). At best, AAP makes a halfhearted, disjointed plea that it should not be charged with constructive knowledge because “there 

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are over 1 billion websites online, with approximately 200 million of those being active websites.” 

Opp. at 7-10 (emphasis in original). But AAP merely asserts that “generally” reverse image 

searches are “difficult,” providing only a declaration about searches currently conducted on a different image. See Opp. at 8-10; see also ECF No. 26-1, Declaration of Robert Stevens (“Stevens 

Decl.”), ¶¶ 7-15. AAP does not dispute that the alleged infringement was publicly available, 

however, and under Eleventh Circuit precedent, AAP is therefore charged with constructive 

knowledge of the alleged injury—even if it did not actually discover the alleged infringement until 

later. See Foudy II, 845 F.3d at 1122-23.

Surprisingly, AAP incorrectly assets: “it should be noted that Property Matters does not

seek an evidentiary hearing with respect to when Plaintiff discovered or, with reasonable diligence, 

should have discovered the subject infringement.” Opp. at 10 (emphasis in original). Property 

Matters’ request for hearing addresses holding an evidentiary hearing, and the Motion invites such 

a hearing throughout. See, e.g., Mot. at 11-12. But because there is no factual dispute that the act 

of alleged infringement was public and was not concealed, the Court can rule as a matter of law 

that AAP was charged with constructive knowledge at least as of April 2017 (the date AAP admits 

the work was publicly available).

AAP’s claims against Property Matters are barred under the Copyright Act’s statute of 

limitations: if applying the “injury rule,” the claims accrued when the injury occurred, which AAP 

concedes was at least in 2017; if applying a “discovery rule”—which would be legal error—the 

claims are still barred because AAP is charged with constructive knowledge as of the date of the 

injury because the evidence was open and public. As a matter of law, Property Matters is now the 

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prevailing party in this action.2

II. AAP PURSUED BASELESS AND FRIVOLOUS CLAIMS AGAINST PROPERTY MATTERS IN 

BAD FAITH AND PRECEDENT AND THE GOALS OF THE COPYRIGHT ACT FAVOR AWARDING PROPERTY MATTERS ITS FULL COSTS,INCLUDING REASONABLE ATTORNEYS’ FEES 

FOR DEFENDING AGAINST THOSE CLAIMS.

AAP’s history of abusive tactics is not the critical issue here: AAP filed and maintained 

this action against Property Matters, and threatened to re-file this action against Property Matters, 

demanding thousands of dollars to avoid litigation, without any evidentiary basis to do so and

wrongfully forced Property Matters to incur fees defending itself from AAP’s improper litigation 

tactics. AAP now admits that it was actually aware before filing this action that the act of alleged 

infringement was performed by Home Junction. Opp. at 11; ECF No. 30-2, Declaration of Daniel 

DeSouza (“DeSouza Decl.”), ¶¶ 7-11. AAP was also constructively aware that the act of alleged 

infringement was performed by Home Junction. ECF No. 1-3 (“Website Design powered by 

Home Junction.”); ECF No. 1, ¶ 23 (“To that end, Home Junction was responsible for designing 

and managing Property Matters’ website for Property Matters’ review and approval, and, upon 

receipt of such approval, Home Junction would publish that content on Property Matters’ behalf.”). 

As admitted in the Opposition and DeSouza Declaration, AAP sued Property Matters because AAP could not resolve the matter with Home Junction. Opp. at 11; Stevens Decl., ¶¶ 30-31;

DeSouza Decl., ¶¶ 11-12. Then, AAP knowingly misrepresented material facts to the parties and 

the Court when it filed its Complaint stating that the alleged infringment occurred “after” AAP’s 

2 AAP’s counsel makes several untethered statements about the undersigned trying to “trap” 

AAP into dismissing “with prejudice.” Contrary to Mr. DeSouza’s further representations to the 

Court, this issue was openly discussed between counsel, and it was explained by the undersigned 

that dismissing “with prejudice” was suggested because it was in AAP’s—and CopyCat Legal’s—

best interest by avoiding a ruling on the issue of the statute of limitations. Correct application of 

the injury rule, or a determination that constructive knowledge occurs when a public act of infringment occurs, would be detrimental to AAP’s lucrative copyright-plaintiff contingency-fee business.

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2018 registration of the Work. ECF No. 1, ¶¶ 16, 24; see also ECF No. 26-1, Declaration of 

Andrew D. Lockton, Esq. (“Lockton Decl.”), ¶ 14; ECF No. 26-5, Ex. A4 to the Lockton Decl. 

(addressing ethical violations by AAP and its counsel from the initial demand letter and knowing 

misrepresentations in the Complaint).

In first threatening Property Matters, AAP’s counsel made several material misrepresentations of fact and law to a lay person, violating Florida ethics rules, and demanded the outrageous

sum of $35,000.00 for the alleged infringment of a single photograph. See Lockton Decl., ¶¶13-

14 and ECF Nos. 26-4, 26-5, Exs. A3-A4 to Lockton Decl. When Property Matters first appeared 

in this matter, it sent AAP a dedicated letter addressing the several serious bars to its maintaining 

and/or prevailing in a case against Property Matters. Lockton Decl, ¶ 6 and ECF No. 26-3, Ex. A2 

to Lockton Decl. AAP’s counsel, apparently, did not bother to read that letter. Lockton Decl., 

¶ 10. AAP forced Property Matters to incur fees in responding to AAP’s improper Complaint and 

then dismissed Property Matters only after AAP’s misconduct was highlighted. See Lockton 

Decl., ¶¶ 6-17 and Ex. A4 to Lockton Decl.

But then, after dismissing Property Matters from the case, in a further bad faith act of litigation abuse, AAP threatened to refile the action unless Property Matters paid AAP an additional

$2,500 – $4,500 after Home Junction’s settlement for the same alleged act. Lockton Decl., ¶ 22 

and ECF No. 26-7, Ex. A6 to Lockton Decl.

AAP invoked the power of this Court to force Property Matters to formally defend itself in 

copyright-infringement litigation. Based on AAP’s response and declarations, at best, AAP realized that it sued the wrong party and dismissed the case against Property Matters because it had 

no chance of prevailing; at worst, AAP knew it never had a claim against Property Matters, but 

nevertheless has attempted through multiple communications to wrongfully extract thousands of 

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dollars from an innocent party. See Opp. at 11-12; see also Stevens Decl., ¶¶ 29-36; DeSouza 

Decl., ¶¶ 3-14, 

III. AAP’S ARGUMENTS AS TO THE REASONABILITY OF FEES ARE UNSUPPORTABLE IN FACT 

AND LAW.

Finally, AAP argues without factual or legal support that the number of hours incurred in 

preparing briefs should be reduced. Opp. at 12. Whereas AAP may employ form complaints and 

present its motions based on templates—a necessary practice for AAP and its counsel to make 

their high-volume litigation business profitable—the motions presented by Property Matters have 

been specifically researched and written for the specific facts at issue in this action. See Mot. at 

14, 16. AAP’s suggestion that researching, outlining, drafting, editing, and finalizing motions—

including the preparation of declarations and exhibits—should only take 3-6 hours per motion is 

frivolous and unrealistic.3

 Noticeably, AAP provides no legal support or case where any court has 

adopted such a minimalist approach in determining the reasonable hours involved in litigation.

As addressed in the Motion, including its exhibits, the number of hours incurred in defending this action was reasonable—especially in light of AAP’s demand for $35,000 at the outset of 

this action and subsequent demand for $2,500 – $4,500 after dismissing its claims. In following 

the precedent of the Supreme Court and Eleventh Circuit, as well as to further the goals of the 

Copyright Act, Property Matters should be awarded the fees requested in the underlying motion, 

to be supplemented to include the additional fees incurred in this briefing process. 

CONCLUSION

For the reasons addressed above and in the underlying Motion (ECF No. 26), Property 

Matters respectfully requests that the Court grant its Motion and award it its full costs from

3 Indeed, more than AAP’s suggested 3-6 hours has been incurred just preparing this Reply to 

AAP’s Opposition.

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defending this action, including the reasonable attorneys’ fees AAP forced Property Matters to 

incur. 

Respectfully submitted,

MCHALE & SLAVIN, P.A.

Andrew D. Lockton 

Andrew D. Lockton (Florida Bar No. 115519) 

Edward F. McHale (Florida Bar No. 190300) 

2855 PGA Boulevard 

Palm Beach Gardens, Florida 33410 

Telephone: (561) 625-6575 

Facsimile: (561) 625-6572 

E-mail: litigation@mchaleslavin.com

Counsel for Defendant Property Matters USA, LLC 

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