Bit Parts

Phil Everly's Family Time-Barred From Claiming Co-Ownership of “Cathy's Clown” Song Copyright With Brother Don

The U.S. District Court for the Middle District of Tennessee, Nashville Division, decided that the family of the late Phil Everly was time-barred by the three-year statute of limitations of §507(b) of the Copyright Act from claiming a copyright co-ownership interest in the Everly Brothers' 1960 hit song “Cathy's Clown.” Everly v. Everly, 2:17-cv-01440. Acuff-Rose, the Everlys' music publisher, registered the song copyright in the Copyright Office in 1960 with Phil and Don as co-authors. In 1980, following what a friend of Phil's described as a “very violent verbally” phone conversation between the brothers, Phil signed a “Release and Assignment” that Don claimed gave Don sole authorship of “Cathy's Clown.” Acuff-Rose's 1988 registration of the copyright renewal term cites Don as sole author. In 2011, Don sent a copyright termination notice to recapture the song copyright from Acuff-Rose. Phil died in 2014. In 2016, his family sent a termination notice to Don, who sued for a declaratory ruling that he is sole author of “Cathy's Clown.” District Judge Aleta A. Trauger observed: “This case is in an unusual procedural posture, and neither party has pointed to any precedent that is directly on point.” District Judge Trauger then found: “[B]ased on the totality of the evidence … Don Everly plainly and expressly repudiated Phil Everly's claim to joint authorship of the Subject Composition[] no later than 2011, when Don filed his Notice of Termination.” The court added: “The 2011 Don Everly Notice of Termination filed in the Copyright Office was a public record.” Don Everly is represented by Linda Edell Howard and Philip M. Kirkpatrick of Adams and Reese LLP in Nashville. Phil Everly's family is represented by Jay Bowen and Lauren M. Spahn of Shackelford Bowen McKinley Norton LLP in Nashville.

Newsworthiness and Public Interest Exceptions in Indiana's Right-of-Publicity Statute Apply to Fantasy Sports

The Supreme Court of Indiana decided that the newsworthiness and public interest exceptions in the state's right-of-publicity law, Indiana Code §32-36-1-1(c), apply to online fantasy sports companies using college athletes' names and likenesses. Daniels v. FanDuel Inc., 18S-CQ-00134. The ruling was in response to a certified question from the U.S. Court of Appeals for the Seventh Circuit. Noting “our Court has never had the opportunity to review Indiana's right of publicity statute,” which was initially enacted in 1994, the state supreme court in part explained: “Considering the genesis and evolution of the right of publicity, and presuming the [Indiana] General Assembly was aware of the right of publicity, its origins, and the definitions available from case law in this area, we find that the term 'newsworthy' was meant to be construed broadly.” The state high court further found: “[I]nformation is not stripped of its newsworthy value simply because it is placed behind a paywall or used in the context of a fantasy sports game. On the contrary, fantasy sports operators use factual data combined with a significant, creative component that allows consumers to interact with the data in a unique way. Although fictional salary values are assigned to players, this does not change the function of the underlying data.”