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IP/Entertainment Case Law Updates

Everly v. Everly

In action between Phil Everly’s heirs and Don Everly over authorship of Everly Brothers’ 1960 hit song Cathy’s Clown, Sixth Circuit reverses district court’s summary judgment ruling that Phil Everly’s claim of co-authorship was time-barred under the Copyright Act, holding that genuine factual issues remained as to when Phil’s co-authorship claim accrued.  

Don Everly and the late Phil Everly were brothers and members of the famous musical duo The Everly Brothers. Following the release of their 1960 hit Cathy’s Clown, both were 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 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 release agreement with Don. Don filed a lawsuit in 2017 seeking a declaration that he was Cathy’s Clown’s sole author.  

Don argued on summary judgment that the claims of Phil’s co-authorship were time-barred pursuant to the Copyright Act’s three-year statute of limitations. The district court agreed, based on the principle that claims of copyright authorship (unlike infringement claims) accrue only once, when the claim of authorship is expressly repudiated by another author. The district court held that Don had expressly repudiated a claim that Phil was co-author at the latest by 2011 based on Don’s conduct reflective of his sole authorship, and that the limitations period on a claim of Phil’s co-authorship expired by 2014.

On appeal, the Sixth Circuit reversed, holding that genuine issues of fact precluded summary judgment on the statute of limitations issue. Explaining that claims of authorship accrue in the same manner that ownership claims do—upon the “plain and express repudiation” of authorship—the court noted that repudiation can include (i) a direct statement of repudiation from one party to the other; (ii) a failure to appropriately credit the party claiming a right; or (iii) the failure to pay royalties to the party claiming a right. Based on the facts of the case, the court thus framed the “central question” in the case as one centered on the import of the 1980 release agreement: “[D]id Don expressly repudiate Phil’s status as co-author, or did he simply exercise the rights to royalties and public credit that Phil voluntarily granted him in the 1980 release without changing Phil’s status as a co-author of the compositions?”  

On its review of the record, the court concluded that genuine factual issues existed as to “whether the 1980 Release reflected a repudiation of Phil’s authorship or rather a voluntary transfer of certain ownership rights, possibly including the right to receive public credit, for Cathy’s Clown.” As to the 1980 agreement, the court explained that authorship (unlike ownership) is not transferrable by contract. Considering the circumstances surrounding the execution of the agreement, conflicting evidence precluded a determination that the agreement was intended to repudiate Phil’s status as co-author. Considering later conduct consistent with Don’s sole authorship—including public acknowledgments of Don’s sole authorship, as well as Don’s receipt of all writers’ royalties—the import of this conduct also hinged on the nature of the 1980 release agreement because “Don could not have repudiated Phil’s authorship if he took credit for the work pursuant to Phil’s voluntary grant of the right to do so.” Finally, the court held that later copyright office filings identifying Don as sole author, including Don’s 2011 termination notice to the publisher, did not constitute evidence of express repudiation because there was no evidence in the record that Phil was aware of these filings.

Accordingly, the court reversed the district court’s grant of summary judgment and remanded for trial. In a concurring opinion, one member of the panel concurred with the result based on controlling Sixth Circuit precedent adopting the repudiation test as applicable to claims of copyright ownership and authorship, but disagreed that the test was properly adopted in the first instance. Finally, in a third opinion, another judge on the panel dissented with the result on the grounds that the language of the 1980 release agreement, as well as evidence of the brothers’ pre- and post-agreement conduct, constituted an express repudiation of Phil’s co-authorship of the song.

Summary prepared by Wook Hwang and Sarah Levitan Perry