Everly v. Everly

In action between estates of brothers Don and Phil Everly over copyright to The Everly Brothers’ 1960 hit “Cathy’s Clown,” Sixth Circuit affirms declaratory judgment that Don Everly is work’s sole author, rejecting co-authorship defense asserted by heirs of Phil Everly.

This decision is the latest in a long-running litigation between the estates of late brothers Don and Phil Everly, of the famous musical duo The Everly Brothers, over copyright ownership to their hit song “Cathy’s Clown.” Following the song’s 1960 release, both Don and Phil were widely credited and acknowledged as co-authors of the song. The original copyright registration identified both as co-authors, and both received royalties from their music publisher, Acuff-Rose, pursuant to a 1960 publishing agreement transferring the copyright to Acuff-Rose. In 1980, however, following a dispute between the brothers, Phil executed a release in which he agreed to “release, and transfer” to Don “all of his rights, interests and claim in and to [‘Cathy’s Clown’], including rights to royalties and his claim as co-composer, effective June 1, 1980.” Thereafter, Don received all royalty payments from the publisher and was generally credited in public as the song’s sole author.

In 2011, Don exercised his right as an author under the Copyright Act to terminate the 1960 grant to Acuff-Rose. After Phil’s death in 2014, his heirs, seeking to recover Phil’s rights derived from his previously claimed co-authorship of the song, also served a notice of termination on Acuff-Rose as well as a notice of termination with respect to the 1980 agreement with Don. Don thereafter filed this lawsuit in 2017 seeking a declaration that he was sole author of “Cathy’s Clown.” Defendants asserted counterclaims for declaratory judgment that Phil was a co-author of the composition, which they would later reframe as a defense to Don’s affirmative claim. 

The district court initially granted summary judgment in Don’s favor, ruling that defendants’ claims were time-barred by the three-year statute of limitations applicable to co-authorship claims and that Phil’s co-authorship claim accrued in 1980. The Sixth Circuit reversed and remanded, holding that genuine factual issues remained as to whether the 1980 agreement reflected the “plain and express repudiation” of Phil’s co-authorship as required to trigger the running of the limitations period. (Read our summary of the Sixth Circuit’s decision here.) On remand, following a two-day bench trial, the court found that Don had repudiated Phil’s co-authorship in written and verbal correspondence in 1980, culminating in the 1980 agreement, and accordingly ruled that Phil’s claim of co-authorship was time-barred following the expiration of the three-year statute of limitations. (Read our summary of the district court’s decision here.) 

This time on appeal, the Sixth Circuit affirmed, addressing and rejecting each of the three arguments raised by Phil’s heirs: (1) that application of the statute of limitations to the co-authorship defense improperly alienated Phil’s termination rights; (2) that as a factual matter, repudiation had not occurred; and (3) that the statute of limitations could not be wielded as a sword to bar defendants’ co-authorship defense.

With respect to termination rights, the court acknowledged that termination rights are inalienable and nontransferable, but dismissed defendants’ contention that the district court’s application of the statute of limitations effected an improper divestiture of those rights. As the court explained, “[T]he statute of limitations plainly bars claims three years after they accrue,” such that “[a]uthors who fail to bring a timely authorship claim no longer have termination rights to alienate.” 

With respect to repudiation, the court found no clear error in the district court’s finding that Don repudiated Phil’s co-authorship claim “by letter and telephone call in 1980 and that the 1980 Release was intended to be a memorialization of that repudiation.” The court noted testimony about the phone call in which “Phil said he would give the song back to Don” and that he had “made an agreement with Don to remove himself as writer of ‘Cathy’s Clown,’” speculating that “Phil may have had legitimate reasons for giving up authorship.”

Finally, the court examined whether the statute of limitations could be used to bar defenses, noting that during the proceedings, Phil’s heirs had reframed their co-authorship counterclaim into a defense against Don’s affirmative claim. While acknowledging that statutes of limitations typically do not apply to defenses, the court relied on Ninth Circuit authority to conclude that defenses can be time-barred in “the limited situation where a defendant is seeking affirmative relief packaged within a defense” to avoid a time bar. The court concluded that, here, Phil’s estate was seeking affirmative relief and engaging in “jurisdictional jujitsu” to evade the statute of limitations by reframing defendants’ co-authorship claim as a defense. Notably, however, the court left open the possibility that Phil’s estate could raise co-authorship as a defense if, for example, Don’s estate were to sue for copyright infringement.

In a concurring opinion, one member of the panel agreed that the result was correct based on controlling precedent, but reiterated doubts reflected in a prior concurring opinion as to whether the one-time accrual rule applicable to claims of copyright ownership and authorship is correct.

Summary prepared by Wook Hwang and Alex Inman