Written by Robert H. Rotstein and Orly Ravid

In Everly v. Everly, No. 19-5150 (6^th Cir. 2020, May 4, 2020), the Sixth Circuit weighed into a fraternal feud that has continued long after the death of Phil Everly, who, with his brother Don, performed as the iconic rock & roll duo The Everly Brothers. The questions before the court: when Phil in 1980 granted his ownership rights to Don in the hit song Cathy’s Clown, did Don expressly repudiate Phil’s status as a co-author of the song? Or did Phil retain his rights as a co-author?

The Everly Brothers released the hit classic Cathy’s Clown in 1960.  Phil and Don were listed as co-authors, received royalties, and publicly presented themselves as co-authors. In 1980, after the brothers stopped speaking, Don asked Phil for the rights to Cathy’s Clown. The brothers executed a Release and Assignment in which Phil agreed to “release, and transfer, [  ] 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.” Although after the 1980 Release and Assignment, Acuff-Rose listed only Don as author, the brothers made public statements crediting Phil as a co-author.

Phil died in 2014. Thereafter, Don Everly claimed to have written Cathy’s Clown himself, while Phil’s heirs claimed that Phil co-authored the song. Both parties executed separate terminations of transfers that had occurred in 1960.  The heirs also sought to terminate the 1980 agreement between the brothers.

In 2017, Don filed a declaratory relief action against the heirs, seeking a declaration (1) that Phil was not an author of Cathy’s Clown; (2) the 1980 Release was not a grant subject to termination under 17 U.S.C. §§ 304(c), 203(a); and (3) Don owned all the rights to the song.  Phil’s heirs counterclaimed, seeking declarations on those issues in their favor.

The district court granted Don’s motion for summary judgment, finding that the claim of Phil’s heirs to authorship was barred by the Copyright Act’s three-year statute of limitations, 17 U.S.C. § 507(b).  The lower court concluded that Don expressly repudiated Phil’s authorship right no later than 2011, when Don filed his notice of termination of the 1960 Grants, thus triggering the statute of limitations.

The Sixth Circuit reversed, finding a genuine dispute of fact as to whether Don expressly repudiated Phil’s authorship.

The Court first discussed cases involving repudiation of copyright ownership, noting that such repudiation can occur explicitly or implicitly.  However, the Court distinguished repudiation of ownership from repudiation of authorship.  The Court noted that authorship status has different implications in copyright law unaffected by the transfer of ownership, including the right to terminate a transfer, which cannot be transferred by contract. 17 U.S.C. § 203(a).  The Court therefore reversed summary judgment because Phil’s grant of ownership is irrelevant to Phil’s claim of authorship.  Thus, while it was undisputed that Phil had transferred ownership in Cathy’s Clown, the evidence was disputed as to whether Don had expressly repudiated Phil’s authorship.  The Court cited decades of factual inconsistencies (e.g., business records and credits representing Don as sole author while both brothers kept making public statements crediting Phil as co-author).  Moreover, there was no evidence that Phil knew that Don was listed as sole author of Cathy’s Clown in the copyright renewal, licenses, or 2011 Termination.  Absent evidence of repudiation of Phil’s authorship, summary judgment was inappropriate.

Ultimately, the public policy behind this complex case is clear: the Sixth Circuit sought to further the policies of the Copyright Act’s termination provision.  The Copyright Act, as the Court noted, does not permit the transfer of authorship, only the ownership rights that arise from authorship.  The termination right functions as protection for authors who grant rights, including transferring ownership, for less than the value of the work for the full copyright term.  However, such additional protection for an author, in the context of joint authorship, might come at the price of uncertainty—since copyright law history shows that there are often hurdles involved in proving authorship and especially co-authorship claims.