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Everly v. Everly

After two-day bench trial, district court enters judgment in favor of plaintiff Don Everly of The Everly Brothers, rejecting as time-barred claim asserted by heirs of Don’s late brother Phil Everly that Phil was co-author of 1960 hit “Cathy’s Clown.”

 Brothers Don Everly and the late Phil Everly comprised the famous musical duo The Everly Brothers. Shortly after Phil’s death in 2014, a dispute emerged between Don Everly and Phil’s third wife and two children regarding the duo’s 1960 hit song “Cathy’s Clown.” In 2017, Don filed a lawsuit against Phil’s heirs, the Phillip Everly Family Trust, and Everly and Sons Music (BMI), alleged to be an assumed name for the trust, seeking a declaration that Don was the sole author of “Cathy’s Clown.” Defendants filed counterclaims seeking declaratory judgment that Phil is an author of the composition, that they are entitled to half the income from the exploitation thereof and that their recent notice of termination with respect to the 1960 grant of rights to the duo’s music publisher was valid.

Initially, the district court granted summary judgment to Don, finding that defendants’ claims were time-barred by the three-year statute of limitations applicable to co-authorship claims, but the Sixth Circuit reversed and remanded, holding that genuine factual issues remained as to when Phil’s co-authorship claim accrued. (Read our summary of the Sixth Circuit’s decision here.)

Following remand, the case proceeded to a bench trial, at which the court was tasked with resolving the following two questions: “(1) Did Don Everly plainly and expressly repudiate Phil Everly’s status as a co-author of ‘Cathy’s Clown’ more than three years before Defendants filed their counterclaim, or did Don simply demand that Phil relinquish public credit and songwriter royalties for ‘Cathy’s Clown’?” and (2) “If Don Everly did not plainly and expressly repudiate Phil Everly’s authorship claim more than three years before Defendants filed their counterclaim, is Phil a co-author of ‘Cathy’s Clown’?” After resolving the first question in favor of Don, the district court entered judgment in his favor.

The court made several key factual findings regarding the song’s history and the parties’ authorship dispute. The original copyright registration identified both brothers as co-authors, and both received royalties from their music publisher, Acuff-Rose, pursuant to a 1960 publishing agreement transferring the copyright in the composition to Acuff-Rose. From 1960 to 1980, the song was publicly credited as having been co-written by the brothers, and they advanced that story through public interviews and other statements. Years later, Don claimed that he wrote the song alone after a breakup with his high school girlfriend and only credited Phil with having co-written it because he was told it would make the duo more popular. Don claimed he was inspired to write the arrangement by the “sounds that [he] heard on the Grand Canyon Suite, a Disney film.” By the early ’70s, the duo broke up after their relationship deteriorated significantly and they were not on speaking terms.

In 1980, Don sent Phil a letter and later called him as a follow-up to the letter, demanding that Phil “correct the record legally” that Don was the song’s sole author. Several witnesses testified at trial regarding the phone call and its fallout. Although Phil maintained that he co-authored the song, he responded to Don that he would “give it back” and asked Don to send him the necessary paperwork. Later that same year, Phil signed a Release and Assignment, stating that Phil “desire[d] to release, and transfer, to the said Don Everly all of his rights, interests and claim in and to [‘Cathy’s Clown’ and other compositions], including rights to royalties and his claim as co-composer, effective June 1, 1980” and effectuated the release and transfer. The agreement, by its own terms, “include[d] not only the said Phil Everly’s right to royalties and other income arising out of the said compositions from and after the effective date, but also every claim of every nature by him as to the compositions [sic] of said songs.” Thereafter, Don received all royalty payments from the publisher and was publicly credited as the song’s sole author.

Defendants argued that Phil treated the 1980 release as a statutorily terminable contractual assignment of his right to receive royalties, but the court found this was not credible. In 2011, Don exercised his right 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 purported 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. The heirs claimed that Phil had taken steps to terminate the 1960 grant during his lifetime, but that the notice was never filed due to attorney error. The court found, however, that no credible evidence existed illustrating that Phil ever sought to terminate the 1960 grant during his lifetime. Instead, the record as a whole demonstrated that Phil treated the 1980 release as “a concession he was no longer to be deemed an author” of the song. As the court held, “Don plainly and expressly repudiated Phil’s authorship of ‘Cathy’s Clown’ by letter and then by telephone call in 1980 and that the 1980 Release was intended to be a memorialization of that repudiation.”

Don argued that the three-year statute of limitations barred defendants’ counterclaim that Phil was a co-author of the song. The court agreed, holding that any claim regarding Phil’s co-authorship expired in 1983, three years after Don’s repudiation of his brother’s authorship in 1980. The court also held that defendants’ other counterclaims were time-barred on this same basis. Defendants argued that the three-year statute of limitations for their counterclaim seeking a declaration as to the validity of their 2014 notice of termination with respect to Acuff-Rose did not begin to run until the effective date of termination in 2016 because their termination rights are distinct from those of Phil. The court rejected this argument, finding the counterclaim was derivative of their authorship counterclaim. As the court noted, termination rights can be exercised only by authors or their successors, and defendants are not statutory successors to an “author” under the Copyright Act.

Finally, the court rejected defendants’ argument that even if the statute of limitations bars their counterclaims, it does not bar their co-authorship affirmative defense to Don’s declaratory judgment claim. The court noted that although statutes of limitations typically do not bar affirmative defenses, parties may not “skirt” statutes of limitations by “bringing time-barred claims as affirmative defenses.” Here, defendants not only purported to notice termination of the grant to Acuff-Rose in 2014, but they also subsequently purported to terminate the 1980 release to Don in 2016 and further demanded from Don a share of the song’s royalties in 2017. Defendants thus sought to “topple the status quo under which Don Everly had been operating since 1980” and caused Don to commence the lawsuit “in an essentially defensive posture.” According to the court, all of this demonstrated that defendants were the “aggressors” in the dispute, and “because [their] authorship claim is time-barred, their defense based upon Phil’s authorship, which mirrors their affirmative claim, is also time-barred.” To hold otherwise would, in the court’s words, sanction “jurisdictional jujitsu” and lead to “an absurd and circular result.”

Summary prepared by Frank D’Angelo and Ava Badiee

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