Who Wrote Cathy’s Clown? Appellate Court Says More Facts Needed

(May 27, 2020) There’s no clowning around in the case to determine who wrote Cathy’s Clown, the Everly Brothers’ famous song.

Don Everly maintains he is the sole author but Phil Everly’s estate says they were co-authors of the 1960 song. In granting summary judgment to Don, a district court agreed that Don is the legal sole author because Phil’s co-authorship claim came too late. But maybe not. The Sixth Circuit found several factual issues unresolved, barring summary judgment.

Under copyright law, “authors may terminate a prior transfer or license of copyright rights during specific times,” explains Cheryl Balough, adjunct professor of copyright law at Chicago-Kent College of Law. If Phil is a co-author, his estate might have termination rights and could receive future royalties for licensing Cathy’s Clown.

Of course, the facts in the case are not simple. The original copyright held by Acuff-Rose Publications listed Phil and Don as authors, they were credited as co-authors, and each received royalties to the song (along with several other not-so-famous recordings).

In 1973, the brothers stopped speaking to each other. In 1980, Don asked Phil about the rights to Cathy’s Clown either by letter or telephone, although there is no record or copy of any letter. In June 1980, Don and Phil signed a “Release and Assignment” in which Phil agreed to release and transfer to Don all of his “rights, interests and claim in and to said compositions, including rights to royalties and his claim as co-composer, effective June 1, 1980.” Following the release, Don received all royalty payments. But then in 1984 Don related a story in a television interview that he and Phil “hashed out” Cathy’s Clown together. When Acuff-Rose renewed the copyright to Cathy’s Clown in 1988, it listed Don as the only author. In 1990 Reba McEntire released a cover of the song and Don was credited as sole author.

The question of authorship resurfaced in 2011 when Don sought to terminate the 1960 copyright assignment to Acuff-Rose effective April 2016. When Don attempted to remove Phil’s name as author of the original copyright, the Copyright Office rejected it as being untimely. In 2014, after Phil’s death, his children filed notices of termination with Acuff-Rose and termination of the 1980 Release and Assignment to Don. In 2017, Don filed for declaratory relief to assert that he was the sole author and entitled to all royalty payments.

The district court found that Phil’s authorship had been expressly repudiated no later than 2011 when Don filed his notice to terminate the assignment to Acuff-Rose. As a result, any claim by Phil as to co-authorship was barred by the three-year statute of limitations to contest authorship.

Not so fast, said the appellate court. The statute of limitations did not begin to run until Don specifically repudiated Phil’s authorship claim and the facts in the record were not clear as to when, or if, that occurred. The appellate court said the 1980 Release and Assignment transferred Phil’s ownership rights but not necessarily his authorship. Because there is no record of the phone call or the letter, it could be that the parties only meant to transfer ownership rights. The 1984 interview where Don said he and Phil hashed out the song is consistent with a finding that the Release and Assignment covered only ownership, not authorship, rights. As to the Reba McEntire cover and credit only to Don, the appellate court said it was possible that public credit could be consistent with the Release and Assignment of ownership, not authorship rights. As to Don’s 2011 termination notice to Acuff-Rose, the opinion stated that Phil may not have been aware that Don was listed as the sole author in the termination notice. Thus, the record is not clear if there was a clear repudiation of Phil’s authorship claim.

Because the record does not establish that Don plainly and expressly repudiated Phil’s authorship claim, there is a genuine issue of a material fact as to whether such repudiation occurred, so the granting of summary judgment was reversed.

Everly v. Everly, Sixth Cir. No. 19-5150, issued May 4, 2020.