Attorney Fees Are Recoverable in Declaratory Relief Action for Copyright Abandonment, Ninth Circuit Holds

Written by Tiana A. Bey

On May 13, 2020, the Ninth Circuit opened the door for courts to award attorney’s fees to parties seeking or defending against equitable relief actions that may implicate the Copyright Act.  In Doc’s Dream v. Dolores Press, Inc., No. 18-56073 (9th Cir. May 13, 2020), the Circuit held broadly that “any action that turns on the existence of a valid copyright and whether that copyright has been infringed” is properly within the scope of attorney’s fees recoverable pursuant to the fee-shifting provision of the Copyright Act.  And it applied that holding to the particular claim for declaratory relief before it, namely whether a party had abandoned a copyright.

Section 505 of the Copyright Act, 17 U.S.C. § 505, provides a court with discretion to “award a reasonable attorney’s fee to the prevailing party” as a part of the recoverable cost incurred “in any civil action under” the Copyright Act.  Doc’s Dream presented a “first impression” issue: whether a declaratory relief claim concerning the judicially-created “copyright abandonment” doctrine qualifies as an action under the Copyright Act.  To address this question, the Circuit had to decide whether a determination of copyright abandonment required a “construction” of the Copyright Act, and it answered in the affirmative. Continue reading “Attorney Fees Are Recoverable in Declaratory Relief Action for Copyright Abandonment, Ninth Circuit Holds”

No Clowning Around About Copyright Authorship: Everly v. Everly

Written by Robert H. Rotstein and Orly Ravid

In Everly v. Everly, No. 19-5150 (6th 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. Continue reading “No Clowning Around About Copyright Authorship: Everly v. Everly”