Bit Parts

Don Everly Prevails Over Late Brother Phil's Family Following Trial on Authorship of Everly Brothers' 1960 Hit "Cathy's Clown"

After a two-day bench trial in the U.S. District Court for the Middle District of Tennessee, Nashville Division, District Judge Aleta A. Trauger found in favor of Don Everly in his 2017 declaratory action against the estate of his brother Phil over authorship of the Everly Brothers 1960 hit "Cathy's Clown." Everly v. Everly, 3:17-cv-01440. In 2020, the U.S. Court of Appeals for the Sixth Circuit had decided there was a genuine issue of material fact regarding whether Don "plainly and expressly repudiated" Phil as a co-author at least three years before Phil's family launched a counterclaim alleging co-authorship in response to Don's lawsuit. Everly v. Everly, 958 F.3d 442 (6th Cir. 2020). If there had been express repudiation, the family's co-authorship counterclaim would be barred under the Copyright Act's three-year statute of limitations. From 1960 to 1980, Phil and Don were both credited on record releases and business documents as "Cathy's Clown" co-authors. Phil and Don also said publicly that they co-wrote the song because, as District Judge Trauger explained it, Don "was told by [Everly music publisher's Acuff-Rose co-founder] Wesley Rose that it would make the Everly Brothers more popular if the public believed that they wrote their songs together." But in 1980, at Don's behest Phil signed a "Release and Assignment" stating that he transferred to Don "all of [Phil's] rights, interests and claim in and to ['Cathy's Clown'], including rights to royalties and his claim as co-composer, effective June 1, 1980." In an enlightening look at the Everly Brothers' historically stormy relationship, District Judge Trauger observed: "The defendants portray Don as a bully who repeatedly badgered Phil to give up his rights to 'Cathy's Clown.' That portrait, however, is inconsistent with the apparently undisputed fact that Phil and Don had essentially no direct contact from the time the duo broke up in 1973 until the telephone call that resulted in Phil's signing the 1980 Release. A single telephone call does not qualify as pestering. The court accepts that Don was imperious and difficult to work with, and Don's being a bully would explain in part why he would repudiate Phil's contribution to writing 'Cathy's Clown,' if indeed he made any such contribution. But the story about Don's bullying does not explain why Phil would sign the 1980 Release unless Phil understood that Don was claiming sole authorship of 'Cathy's Clown' and that Phil would no longer be credited as a co-author of the work." The district judge then decided that Phil's family's co-authorship counterclaim was time-barred because Don expressly repudiated co-authorship by Phil in a letter and phone call to Phil prior to Phil's signing of the June 1980 Release and Assignment.