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Sixth Circuit Affirms Late Don Everly's Sole Authorship Right to Everly Brothers' 1960 Hit "Cathy's Clown"

The U.S. Court of Appeals for the Sixth Circuit has affirmed a trial court ruling that, in 1980, Don Everly effectively repudiated his brother Phil's co-authorship of the duo's 1960 hit "Cathy's Clown." Garza v. Everly, 21-5530. The litigation arose out of a 2017 declaratory action that Don, who passed away in August 2021, filed in Nashville federal district court claiming sole ownership of the song. At Don's urging, Phil, who died in 2014, had 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." After an April 2021 bench trial, the district court decided that Phil's family's co-authorship counterclaim was time-barred by the three-year statute of limitations of the U.S. Copyright Act for authorship claims, including 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. In its affirmance, the Sixth Circuit noted in part, "In a motion for reconsideration before the district court, Phil's estate essentially reframed the counterclaim into a defense, making the argument that the statute of limitations could not be used as a 'sword' against the defense of co-authorship." But the appeals court rejected the position of Phil's estate by reasoning: "While it is true that statutes of limitations do not usually apply to defenses, the district court viewed Phil's authorship claim as 'amount[ing] to' an affirmative claim. It viewed Phil's estate as 'skirting' the statute of limitations by bringing a claim in the form of a defense." The appeals court nevertheless added: "We do not hold, however, that Phil's estate may never raise Phil's authorship as a defense. For example, if Don's estate were seeking damages for infringement, for defamation, or the like, Phil's estate perhaps could rely on Phil's factual authorship of Cathy's Clown, if proved, to reduce its liability to the extent authorship is relevant."