Sixth Circuit Revives Copyright Dispute Over Everly Brothers Song

Phil Everly (left) and Don Everly (right) perform on the Everly Brothers Show in 1970. (ABC Television via Wikipedia)

CINCINNATI (CN) — The Sixth Circuit breathed new life into a contentious copyright dispute between Don Everly and the successors of his late brother, Phil Everly, over authorship of the duo’s 1960 hit, “Cathy’s Clown,” which went on to become their best-selling single.

A divided three-judge panel in the circuit court overturned a U.S. District judge’s decision that went in favor of the elder brother Don, and ordered the case remanded so it can proceed to trial in Tennessee. 

The lawsuit was filed in 2017 by Don and sought a declaration that he was the sole author of the song. After the Phillip Everly Family Trust and Phil’s successors filed counterclaims for co-authorship credits, U.S. District Judge Aleta Trauger granted Don’s motion for summary judgment.

Trauger, an appointee of Bill Clinton, ruled that claims of Phil’s co-authorship were barred by the statute of limitations, which she said had been triggered no later than 2011.

Released in 1960 and performed on Dick Clark’s “American Bandstand,” “Cathy’s Clown” originally listed both Don and Phil as co-authors but things changed when the brothers had a falling out in 1973. According to an article in Rolling Stone, Don was drunk at a Hollywood show and flubbed lyrics so many times that his brother Phil “smashed a guitar over his head and stormed out.”

The record is murky regarding their interactions over the next several years but Don apparently either phoned Phil or sent him a letter sometime around 1980 and demanded sole authorship rights to the hit song.

The alleged letter has not yet been produced in the course of the litigation but the brothers executed a release agreement in 1980 in which Phil relinquished his “rights to royalties and his claim as co-composer” to Don.

“Cathy’s Clown” was covered by country superstar Reba McEntire in 1990, and Don was credited as the sole author both when the song was released and when he received the Robert J. Burton Award for Broadcast Music Inc.’s Country Music Singer of the Year for his contributions on the cover song.

Don attempted to remove his brother’s name from the original copyrights in 2011 but was denied by the U.S. Copyright Office.

Phil passed away in 2014, and his successors unsuccessfully attempted to terminate the 1980 release in 2016.

U.S. Circuit Judge John Bush, an appointee of President Donald Trump, authored the opinion and said the case revolved around whether Don had “expressly repudiated” his brother’s claim as an author of the song.

Bush elaborated on copyright repudiation and cited the 2005 Sixth Circuit decision in Ritchie v. Williams, a case involving Kid Rock and his former promoter.

Alvin Williams claimed he and Robert James Ritchie, aka Kid Rock, had formed a copyright partnership before the singer’s career took off but the court ruled a letter written by Kid Rock ended Williams’ ownership in the songs.

Such a direct statement is not required to establish repudiation, and while Bush noted that copyright authorship differs from copyright ownership, he said the same test applies to both types of cases.

Phil’s successors admitted he gave up his right to earn royalties from “Cathy’s Clown” but said he did not relinquish his status as co-author of the song, and Bush discerned enough of a dispute of fact to send the case back to federal court.

“Joey Paige testified that the dispute transpired when Don called Phil to demand that he remove his name from the songs, while Don testified that he does not recall calling Phil with such a demand, and that the only communication precipitating the 1980 release was a letter sent sometime after 1975, a document notably missing from the record,” Bush wrote.

“A reasonable factfinder could therefore determine that the call never occurred. It could also find that the letter as described by Don was never sent,” he added.

Bush also cited the brothers’ behavior after the 1980 release was signed as evidence they maintained co-authorship status, specifically a 1984 television interview in which Don said, “I started a song, called Phil over, he came over and we worked — we hashed it out and went in the studio.”

Ultimately, Bush concluded Phil’s successors “identified a triable factual dispute about the events precipitating the 1980 release,” which meant the lower court had erred when it found the release had triggered the statute of limitations.

Attorney Will Parsons of Shackelford, Bowen, McKinley and Norton LLP argued on behalf of the family of Phil Everly last year. 

“Our clients look forward to their day in court on the central issue in this case, which is whether Phil Everly co-wrote ‘Cathy’s Clown,’” Parsons said in a statement. 

Don’s attorney, Joshua Cumby of Adams and Reese LLP, said via email “the only dispute here is how Don Everly repudiated his brother’s claim as a co-composer of ‘Cathy’s Clown.’”

“We also think that the majority focused too much on the legal significance of the 1980 release (who transferred what rights to whom) rather than on its power to prove Don’s repudiation of Phil’s ‘claim as co-composer,’” Cumby added (emphasis in original).

The attorney pointed out that a footnote in the court’s opinion gave his client a win and affirmed Judge Trauger’s decision regarding two other Everly Brothers songs included in the original complaint: “Sigh, Cry, Almost Die” and “That’s Just Too Much.”

Senior U.S. Circuit Judge Ralph Guy Jr., an appointee of Ronald Reagan, dissented from the majority and claimed none of the factual disputes affect the timing of the suit filed by Phil’s successors.

“Whatever the truth on the merits —the story they told for the first twenty years after the song’s creation or the one they told for the last twenty years before Phil’s death — no reasonable jury could conclude other than that Don expressly repudiated Phil’s claim of co-authorship more than three years before this action was commenced in November 2017.” 

U.S. Circuit Judge Eric Murphy, a Trump appointee, also sat on the panel and wrote an opinion in which he concurred with the majority.

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