Cain and Abel.
Romulus and Remus.
Queen Elizabeth I and Queen Mary I.
Joan Fontaine and Olivia de Havilland.
J.R. and Bobby Ewing.
Liam and Noel Gallagher.
Oh, sibling rivalry! That intense competition that experts say is born of a desire to win more attention from one's parents, and that typically (but not always) subsides when the need for parental approval succumbs to other urges. We can add to the long list of its victims Don and Phil Everly, professionally known as the Everly Brothers. The duo became famous for the intricate harmonies that infused their many hits and that influenced a generation of musicians, among them the Beatles, the Beach Boys and the Bee Gees. But harmony, apparently, did not extend beyond the recording studio. The brothers didn't speak for a decade after a meltdown at a concert in Hollywood in 1973, and even after they reunited in the 1980s for a tour, their relationship reportedly remained rocky, with more periods of estrangement. This rivalry burned so hot that it survived Phil's death (of lung disease in 2014) and bubbled to the surface (recently) in a lawsuit in the Sixth Circuit, where Don and Phil's heirs are fighting over which of the brothers wrote Cathy's Clown, the best-selling single of their career.
In the lawsuit, Don contends that he wrote Cathy's Clown by himself, and Phil’s heirs claim that the brothers wrote it together. Why does this matter, half a century after the song was released? Because both camps are trying to regain copyright ownership over the composition by terminating, pursuant to 17 U.S.C. § 304(c), the 1960 assignment of the song's copyright to the duo's publisher, Acuff-Rose (the "1960 Grant"). Because only an author (or an author's heirs) can terminate under § 304(c), the question of whether Phil cowrote the song is highly relevant to his widow and children.
There is a complicated factual history. Included here are the best (and most relevant) bits.
Who Wrote the Song?
In the beginning, there was every indication that Phil and Don wrote Cathy's Clown together. Both were listed as co-authors on the original copyright registration. Each received royalties from sales of Cathy's Clown. Both were recognized as authors when the song won awards from BMI in 1961 and again in 1975. And the brothers took joint credit for writing the song during an appearance on The David Frost Show in 1972.
However, at some point, Don "changed his tune" (the court's pun, not mine) and demanded that Phil take his name off Cathy's Clown. How, when and why this occurred is disputed by the parties. Joey Paige (the former bass player for the Everly Brothers who now sells real estate in California) testified that he had overheard Phil's side of a "verbally violent" phone call that took place between the brothers in 1980. According to Paige, during the call, Phil told Don "you know I wrote half that song!" but ultimately said he was going to “give it back” because he was tired of fighting with Don. Don denied this phone call took place and claimed instead that he had raised the issue with Phil in a letter he sent in 1975. (That letter has not been produced in the litigation.) In any event, ultimately (in 1980) the brothers executed a “Release and Assignment” (the "1980 Release"). In that document Phil agreed (1) to “release, and transfer, to the said Don Everly all of his rights, interests and claim in and to [Cathy's Clown], including rights to royalties and his claim as co-composer, effective June 1, 1980" and (2) to “transfer, release, assign and set over unto Don Everly all of his rights, titles, interests and claim to [Cathy's Clown],” which included “not only the said Phil Everly’s right to royalties and other income arising out of the [Cathy's Clown] from and after the effective date, but also every claim of every nature by him as to the compositions of said songs.”
From that point on, only Don received royalties from Cathy's Clown. When, in 1988, Acuff-Rose exercised the right to renew the song's copyright, it listed Don as the only author. And when Reba McIntire released a cover version of the song in 1990, only Don was credited as the songwriter and only Don was acknowledged when the cover won awards. Yet, despite the execution of the 1980 Release, both brothers occasionally made public statements that credited Phil as a co-author of the song, including in a 1984 television interview in which Don stated “I started a song, called Phil over, he came over and we worked – we hashed it out and went in the studio.” This was an origin story that wouldn't die.
The Copyright Terminations
The Copyright Act allows authors (and their heirs) to terminate, within specified statutory windows, any exclusive or nonexclusive grant or license of a copyright. For grants made before January 1, 1978 (the effective date of the 1976 Copyright Act), § 304(c) permits the author to terminate at any time between fifty-six and sixty-one years after the copyright was originally secured. For grants made after 1978, § 203 permits termination between thirty-five and forty years after the grant was made. (My colleague Ned Rosenthal recently wrote an excellent series of posts on the intricacies of the Copyright Act's termination provisions. You can find them here, here and here.)
In 2011, Don sent Acuff-Rose a notice, pursuant to § 304(c), terminating the 1960 Grant. After Phil died in 2014, his heirs served their own § 304(c) termination notices on Acuff-Rose. And, for good measure, n 2016, Phil's heirs also served a § 203 notice of termination on Don with respect to the 1980 Agreement.
In 2017, Don sued Phil's heirs seeking a declaration that (1) Phil was not an author of Cathy’s Clown; (2) the 1980 Release is not a grant subject to termination under § 304(c) or § 203; and (3) Don owns 100% of the copyright termination rights in Cathy’s Clown. Phil's heirs asserted counterclaims, essentially seeking a declaration of the mirror opposite. The district court granted summary judgment to Don, finding that Phil’s claim for authorship was barred by the statute of limitations. An appeal ensued. The Sixth Circuit reversed, with one judge dissenting.
Statute of Limitations for Authorship Claims
Under § 507(b), a copyright claim must be brought "within three years after the claim accrued.” For ordinary infringement claims, a claim accrues when the infringing act occurs, and each new infringing act causes a new three-year period to accrue. However, in the Sixth Circuit (like in many other circuits), claims pertaining to copyright ownership accrue only once: when there is a "plain and express repudiation of ownership by one party as against the other.” Accordingly, iI an ownership claim is not brought within three years of repudiation, the claim is time-barred forever. Nimmer and courts have likened repudiation of copyright ownership, in this context, to "open and notorious possession" of real estate in the context of adverse possession. As the court noted "analogizing copyright repudiation to adverse possession is appropriate because copyright, like real estate, lasts a long time, so stability of title has great economic importance" (internal quote removed).
However, the dispute between Don and Phil's heirs involves authorship, not copyright ownership. And, of course, there is a difference between ownership and authorship. Because copyrights are freely assignable, ownership can (and often does) change over time. Authorship, by contrast, is forever. If, as a factual matter, Phil truly co-wrote Cathy's Clown, nothing the brothers put in the 1980 Release could change that.
Ultimately, the Sixth Circuit concluded (and both parties agreed) that a claim relating to authorship, like a claim relating to ownership, accrues - and the three-year statute of limitations period commences - when authorship is expressly repudiated. Repudiation of authorship can happen in three ways:
The party claiming sole authorship can repudiate the plaintiff’s authorship (1) privately in direct communication with the plaintiff; (2) publicly by asserting sole authorship to the world and the plaintiff, including the listed credit on the published work; or (3) implicitly by receiving remuneration for the work to which the plaintiff is entitled.
The court cautioned that "actions repudiating ownership are irrelevant to begin the statute of limitations for an authorship claim because repudiation of ownership is not adverse to the author’s claim as such." For example, Don's receipt of royalties from Cathy's Clown (which he was entitled to as the copyright owner pursuant to the 1980 Release) would not be adverse to Phil's claim that he is an author of the song. The court also noted that, to be effective, an express repudiation of authorship must "be made by an author herself because, unlike ownership, authorship is not transferrable by contract."
Application
The majority found that the district court had erred by granting summary judgment to Don because there were unresolved and material questions of fact regarding whether Don had plainly and expressly repudiated Phil’s authorship of Cathy's Clown. Principally, the parties disputed whether the 1980 Release was (as Don argued) a complete repudiation of Phil's authorship that would have triggered the three-year statute of limitations or whether (as Phil's heirs argued) it was nothing more than a "a rough-justice agreement to settle intra-family copyright disputes" over ownership rights of Cathy’s Clown (and other songs). The court found that the 1980 Release was open to interpretation on this question - with provisions that supported each party's position. Likewise, the court found that a jury could view Don and Phil’s continued acknowledgment of Phil’s co-authorship - both before and after 1980 Release was executed - as evidence that Don did not dispute Phil’s status as an author of the song at the time he signed the 1980 Release or thereafter. The court also concluded that the fact that Don had received sole songwriter credit in connection with Reba McEntire's cover of Cathy's Clown was not, as a matter of law, dispositive proof of Don's repudiation of Phil's authorship of the song, since a jury could reasonably conclude, as Phil's heirs argued, that "the right to receive public credit (in addition to simply financial compensation) was included in the bundle of rights that [Phil] voluntarily transferred to Don to settle other copyright disputes" as part of the 1980 Release. Sifting through the same evidence, the dissenting judge concluded that summary judgment for Don was appropriate because no reasonable juror could conclude that Don had not repudiated Phil's authorship of Cathy's Clown long ago - certainly, no later than in 1990 when Don received sole authorial credit in connection with Reba McEntire's release of her cover.
The case has been remanded to the lower court and, presumably, will go to trial (if it is not settled).
One final note: Judge Murphy wrote an interesting concurring opinion in which he noted that the court had "faithfully follow[ed] our current precedent" but then proceeded to question that very precedent. In a nutshell, Judge Murphy's plain reading of the text of §507(b) leads him to conclude that courts (including the Sixth Circuit) have incorrectly ruled that a "discovery rule" governs when the Copyright Act's statute of limitation period commences. Instead, Judge Murphy believes that a claim "accrues" on the date that a violation of the plaintiff’s legal right has occurred, regardless of when or whether the plaintiff discovers the violation. Judge Murphy predicts "that the Supreme Court may one day hold that the plain text of the Copyright Act’s statute of limitations contains an occurrence rule, not a discovery rule." Should this occur, Judge Murphy believes that this "will likely require courts to reassess their plain-and-express-repudiation tests, which have long followed a discovery-rule model." We shall see.
958 F.3d 442 (11th Cir. 2020)
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