Everly v. Everly et al

Filing 26

MEMORANDUM OPINION OF THE COURT: Before the court is the Motion for Summary Judgment (Doc. No. 19 ), filed by plaintiff Isaac Donald Everly, to which the defendants have filed a Response (Doc. No. 22 ), and the plaintiff has filed a Reply (Doc. No. 24 ). For the reasons stated herein, the court will grant the motion. Signed by District Judge Aleta A. Trauger on 11/6/2018. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(jm)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

ISAAC DONALD EVERLY,
Plaintiff,
v.
PATRICE Y. EVERLY, PHILLIP J.
EVERLY, CHRISTOPHER EVERLY,
THE PHILLIP EVERLY FAMILY
TRUST and EVERLY AND SONS
MUSIC (BMI),
Defendants.

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Case No. 3:17-cv-01440
Judge Aleta A. Trauger

MEMORANDUM
Before the court is the Motion for Summary Judgment (Doc. No. 19), filed by plaintiff
Isaac Donald Everly, to which the defendants have filed a Response (Doc. No. 22), and the plaintiff
has filed a Reply (Doc. No. 24). For the reasons stated herein, the court will grant the motion.
I.

FACTUAL BACKGROUND
The facts stated herein are either undisputed or viewed in the light most favorable to the

defendants as the non-movants, unless otherwise indicated.
Isaac Donald Everly (“Don” or “Don Everly”), the plaintiff in this action, and Phillip
Everly (“Phil” or “Phil Everly”), who died in 2014, are brothers and were members of the music
group, the Everly Brothers. (Doc. No. 19-1 ¶ 2.) The Everly Brothers dissolved and Don and Phil
Everly stopped speaking in 1973. (Id. ¶ 11.) “[I]t was not a friendly breakup.” (Doc. No. 19-3,
Jason Everly Dep. 11. 1)
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The deposition transcripts filed by the parties are condensed versions, containing four
pages of the original transcript on each page. Some of the transcripts are excerpts rather than

2
Phil Everly is survived by his third wife, Patrice Everly (“Patti” or “Patti Everly”), and two
sons, Phillip J. Everly (“Jason” or “Jason Everly”) and Christopher Isaac Everly (“Chris” or “Chris
Everly”). Patti, Jason, and Chris Everly are the defendants in this action.
One of the Everly Brothers’ most famous hits was the song “Cathy’s Clown,” which was
recorded for Warner Bros. Records and released in 1960. The songs “Sigh, Cry, Almost Die” and
“That’s Just Too Much” were also recorded for Warner Bros. and released later the same year.
(Doc. No. 19-1 ¶ 4; Doc. No. 1-2; Doc. No. 19-9.)
Don and Phil Everly are both listed as “authors” on the original copyright registrations for
the musical compositions “Cathy’s Clown,” “Sigh, Cry, Almost Die,” and “That’s Just Too Much”
(collectively, the “Subject Compositions”). By agreements dated March 21, 1960 and July 19,
1960 (the “1960 Grants”), Don and Phil Everly assigned 100% of the worldwide copyright in the
Subject Compositions to Acuff-Rose Publications (“Acuff-Rose”). (Doc. No. 1-1; Doc. No. 19-9,
at 19–20, 23–24.) Even after assigning the copyrights in the Subject Compositions to Acuff-Rose,
Don and Phil Everly retained a right to a portion of the worldwide royalties derived from the
exploitation of the Subject Compositions (the “Songwriter Royalties”). From 1960 to 1980,
“Cathy’s Clown” was credited on all copies as having been authored by both Don and Phil, and
they shared the Composition’s Songwriter Royalties equally. (Compl. ¶ 21; Answer ¶ 21.)
Don Everly now claims sole authorship of the Subject Compositions. (Doc. No. 19-1 ¶¶ 3,
6; Doc. No. 19-5, Don Everly Dep. 11, 22.) Although that contention is in dispute, there is no
dispute that, sometime in 1980 but prior to June 1980, Don Everly contacted Phil, demanding that
Phil’s name be “taken off” of “Cathy’s Clown.” Patti Everly testified that Phil told her that he “no

complete copies. The page numbers provided herein are those assigned to the original deposition
transcript.

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longer had credit as a writer” on the song “Cathy’s Clown,” because Don “demanded that he take
his name off.” (Doc. No. 19-2, Patti Everly Dep. 29.) She knew that Phil was upset about this
demand, “[b]ecause he talked about it for 20 years how upset he was about it.” (Id.) Phil’s friend,
Joey Paige, testified that he was present when Phil received a phone call from Don sometime in
1980. The telephone conversation became “very violent verbally.” (Doc. No. 19-4, J. Paige Dep.
12.) Phil was angry and agitated as a result of the conversation, the outcome of which was that he
had told Don he was going to “give [Cathy’s Clown] back to him.” (Id. at 14.) Joey Paige counseled
Phil not to do anything in haste, particularly because Phil disputed Don’s claim to have written the
song by himself. (Id.) Phil’s son, Jason Everly, testified that he came home from school one day
in 1980 to discover that his father was very upset. All Jason knew initially was that Phil had had a
telephone conversation with Don. As a result of that phone call, Phil “did sign paperwork saying,
‘I absolve myself of the writership’” of the song “Cathy’s Clown.” (Doc. No. 19-3, Jason Everly
Dep. 28.)
In addition, in the wake of Don’s demand, Phil Everly executed a document entitled
“Release and Assignment” (the “1980 Release”), which was notarized on June 10, 1980. (Doc.
No. 1-3; see also Doc. No. 19-4, Defs.’ Resp. to Interrog. 6; Doc. No. 19-3, Jason Everly Dep. 28–
29, 99.) According to Jason, after signing the 1980 Release, Phil Everly was aware as of 1980 “that
his name had been taken off and that Don was listed as the sole writer of ‘Cathy’s Clown’ and
these other songs.” (Doc. No. 19-3, Jason Everly Dep. 64.)
The 1980 Release, a single-page document, acknowledges that Don and Phil Everly had
previously executed an agreement “transferring” the Subject Compositions to Acuff-Rose, as
publisher and that the prior agreement “listed both Phil Everly and Don Everly as composers” of
the Subject Compositions. (Doc. No. 1-3, at 2.) It reflects Phil Everly’s “desire[] to release, and

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transfer, to the said Don Everly, 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.” (Id.)
Accordingly, in exchange for the recited consideration of “One Dollar ($1.00),” Phil Everly did
transfer, release, assign and set over unto Don Everly all of his rights, titles,
interests and claim to the musical compositions “CATHY’S CLOWN,” “SIGH,
CRY, ALMOST DIE,” and “THAT’S JUST TOO MUCH,” the copyrights of
which were obtained in 1960 by Acuff-Rose Publications, and which are still owned
by them. This transfer and release, which is effective June 1, 1980, includes not
only the said Phil Everly’s right to royalties and other income arising out of said
compositions from and after the effective date, but also every claim of every nature
by him as to the compositions of said songs.
(Id.) The 1980 Release further expressly authorized the performing rights society, Broadcast
Music, Inc. (“BMI”), and Acuff-Rose to “correct their records accordingly and to make payments
of amounts due and to become due to the said Don Everly solely on and after the effective date
hereof.” (Id.)
The 1980 Release was recorded in the United States Copyright Office shortly thereafter.
(Doc. No. 19-9, at 2.) The 1980 Release was also filed with BMI and Acuff-Rose. (Doc. No. 19-1
¶¶ 17, 18.) Thereafter, BMI and Acuff-Rose Publications modified their records to reflect that Don
Everly was the sole “author” of the Subject Compositions (Doc. No. 19-11, at 2, 5–6), and they
ceased payment of any Songwriter Royalties to Phil Everly (Doc. No. 19-5, Don Everly Dep. 22;
Doc. No. 19-1 ¶18).
After execution of the 1980 Release and in accordance with its terms, Don Everly was
publicly credited as the sole author of “Cathy’s Clown” and was paid 100% of the songwriter’s
share of royalties for “Cathy’s Clown.” (Doc. No. 19-1 ¶¶ 20 and 24; Doc. No. 19-3, Jason Everly
Dep. 45, 99.) After the filing of the 1980 Release, Sony issued hundreds of licenses designating
Don Everly as the sole author of “Cathy’s Clown.” (Doc. No. 19-9, at 26–38.) In 1990, Reba
McEntire’s cover recording of “Cathy’s Clown” earned the Robert J. Burton Award for BMI

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Country Song of the Year, an award that was presented to Don Everly as the sole songwriter at an
awards celebration that Don attended without Phil Everly. (Doc. No. 19-5, Don Everly Dep. 27–
28; Doc. No. 19-1 ¶ 20.) Phil Everly was aware that Don Everly alone had been accorded this
award. (Doc. No. 19-3, Jason Everly Dep. 19.) Prior to 1980, both Don and Phil Everly had been
awarded songwriting honors for “Cathy’s Clown” by BMI. (See Doc. No. 19-11, at 8–9 (program
for 1961 BMI award dinner).)
From June 10, 1980, when the 1980 Release was executed, until his death in 2014, Phil
Everly never brought a legal action to challenge Don Everly’s claim of sole authorship of the
Subject Compositions or the enforceability of the 1980 Release. (Doc. No. 19-2, Patti Everly Dep.
30.) He privately maintained, however, that he was a co-author of the song. (See, e.g., Doc. No.
19-3, Jason Everly Dep. 67; Doc. No. 19-4, J. Paige Dep. 14.)
In January 1988, Acuff-Rose, as the “duly authorized agent of Don Everly,” renewed the
copyright to “Cathy’s Clown.” (Doc. No. 1-5.) Don Everly is the sole renewal claimant listed on
the renewal form, and Don Everly alone is identified as the “author” of the words and music to
“Cathy’s Clown” in the Renewal Registration. (Id.)
In 2011, Don Everly engaged counsel to exercise his United States copyright termination
rights (“Termination Rights”) with respect to the Subject Compositions by filing a notice to
terminate the 1960 Grants pursuant to 17 U.S.C. § 304(c) 2 and recapture 100% of the United States
copyright in the Subject Compositions, effective April 14, 2016 and recorded in the U.S. Copyright
Office effective July 15, 2011 (the “2011 Don Everly Notice of Termination”). (Doc. No. 1-6, at

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Section 304(c) provides that an author’s “exclusive or nonexclusive grant of a transfer or
license of the renewal copyright or any right under it, executed before January 1, 1978” may be
terminated under certain conditions. Section 203(a) similarly provides for the termination of
copyright grants, but it applies to grants executed by the author “on or after January 1, 1978.”

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4–5; Doc. No. 19-12 ¶ 12; Doc. No. 19-1 ¶ 21.) As a result of the exercise of his Termination
Rights, Don Everly claims exclusive copyright ownership in the Subject Compositions.
Also in 2011, Don Everly authorized his attorney to file paperwork in the U.S. Copyright
Office to remove Phil Everly’s name as author of the Subject Compositions on the original 1960
copyright registrations. (Doc. No. 19-12 ¶ 13.) In response to that directive, Don’s attorney filed
forms with the U.S. Copyright Office stating, “Corrected Information: Delete Phil Everly,” and
further explaining,
Copyright claimant/publisher, Acuff-Rose Publications, mistakenly listed Phil
Everly as co-author, however, Don Everly is the sole author as confirmed by the
agreement signed by Phil Everly . . . .
(Doc. No. 19-12, at 26–27, 30–31, 42–43.) The U.S. Copyright Office rejected the forms,
explaining that corrections to pre-1978 copyright registrations had to be filed within 28 years of
the initial registration. (Id. ¶ 13.)
In 2007, Phil Everly engaged Lewis Anderson to file notices of termination, that is, to
exercise his Termination Rights, with respect to three specific songs, but not for the Subject
Compositions. (Doc. No. 19-7, L. Anderson Dep. 19, 22–23, 28.) In 2012, Phil engaged Copyright
Recapture to assist him in exercising his Termination Rights with respect to twenty-two additional
songs. The Subject Compositions were not among these songs and were not listed on any of the
notices of termination prepared by Copyright Recapture. (Doc. No. 19-13, at 9–25.) Other than
unsubstantiated hearsay, there is no evidence that Phil ever made any attempt to recapture any
rights he might have had with respect to the Subject Compositions.3

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Jason Everly testified that he believed Phil had made an effort to pursue his termination
rights to “Cathy’s Clown” prior to his death in 2014, stating that Phil had told him he was
“interested to get it back.” (Doc. No. 19-3, Jason Everly Dep. 20–21.) Lewis Anderson testified
that Patti and Jason Everly told him that they believed Phil had meant to file a Notice of
Termination for a number of songs, including “Cathy’s Clown.” (Doc. No. 19-7, L. Anderson Dep.

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Following Phil’s death in early 2014, Patti Everly and Jason Everly filed their own notice
purporting to terminate the 1960 Grant and the extended renewal term of the copyright for “Cathy’s
Clown,” among other compositions, effective November 14, 2016 (the “2014 Notice of
Termination”), pursuant to 17 U.S.C. § 304(c). (Doc. No. 1-7, at 4–9.) According to Don Everly,
Jason and Patti did not file notices purporting to terminate the copyright grants for “Sigh, Cry,
Almost Die” and “That’s Just Too Much” until after this lawsuit was filed. (See Doc. No. 21, at
7.) There is no actual evidence in the court’s record regarding these later notices.
In 2016, Patti and Jason served on Don Everly a Notice of Termination (the “2016 Notice
of Termination”), purporting to terminate all rights granted by Phil to Don Everly in the 1980
Release, pursuant to 17 U.S.C. § 203(a). (Doc. No. 1-8.)
II.

Procedural Background
Plaintiff Don Everly filed his Complaint for Declaratory Judgment (Doc. No. 1) on

November 8, 2017, against Patti Everly, Jason Everly, and Chris Everly as the statutory successors
to Phil Everly’s U.S. Copyright Termination Rights under the United States Copyright Act
(“Copyright Act”), specifically 17 U.S.C. §§ 304(c) and 203(a), and against the Phillip Everly
Family Trust (“Trust”) and Everly and Sons Music (BMI) (alleged to be an assumed name for the
Trust (Doc. No. 1 ¶ 8)), as a legal owner or successor to Phil Everly’s rights or as a legal owner of
the statutory successors’ rights (collectively “Defendants”).
The factual allegations in the Complaint focus primarily upon “Cathy’s Clown” as the
“Composition” at issue, likely because, as indicated above, the defendants did not file notices to
terminate the 1960 Grants for the other two works until after this lawsuit was filed. In his

27.) Anderson, however, never found any documentation of such an attempt. (Id. at 28.) He also
testified that Phil never asked him to file a Notice of Termination related to “Cathy’s Clown.” (Id.)

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Complaint, Don Everly seeks a judicial declaration that: (1) Phil Everly is not an “author” of
“Cathy’s Clown”; (2) the defendants are not the statutory successors of an “author” with respect
to “Cathy’s Clown” and are estopped from exercising any rights granted to “authors” of
copyrighted works; (3) the 1980 Release is not a grant of a transfer or license of copyright or of
any right under a copyright and, therefore, is not subject to termination pursuant to 17 U.S.C. §
203(a), thus invalidating the 2016 Notice of Termination of the 1980 Release; and (4) Don Everly
owns 100% of the U.S. copyright in “Cathy’s Clown” and 100% of the songwriter royalties derived
from that work, as well as those for “Sigh, Cry, Almost Die” and “That’s Just Too Much.” (Doc.
No. 1, at 12–3.)
The defendants filed an Answer, Affirmative Defenses, and Counterclaim (Doc. No. 5), on
November 29, 2017. Their Counterclaim seeks declarations that Phil Everly is an author of
“Cathy’s Clown” under 17 U.S.C. § 203, that the defendants’ Notices of Termination were valid
under 17 U.S.C. §§ 304(c) and 203(a), and that the defendants are entitled to half of the income
derived from “Cathy’s Clown.” (Doc. No. 5, at 7.) The Answer and Counterclaim do not reference
the other two works.
Don Everly filed his Motion for Summary Judgment on July 23, 2018, accompanied by a
Memorandum of Law, Statement of Undisputed Material Facts, and numerous deposition excerpts,
declarations, and exhibits. (Doc. Nos. 19, 19-1 through 19-14, 20, 21.) Although the plaintiff never
filed an amended complaint, the motion expressly seeks a declaration related to all three of the
Subject Compositions. The defendants’ Response presumes that resolution of the issues as they
pertain to “Cathy’s Clown” will be dispositive as to the other two Subject Compositions as well.

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III.

Legal Standard
Summary judgment “shall” be granted “if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). A party moving for summary judgment can satisfy its burden by demonstrating “that
the respondent, having had sufficient opportunity for discovery, has no evidence to support an
essential element of his or her case.” Minadeo v. ICI Paints, 398 F.3d 751, 761 (6th Cir. 2005)
(citation omitted). The fact that the evidence may be controlled or possessed by the moving party
does not change the non-moving party’s burden “to show sufficient evidence from which a jury
could reasonably find in her favor, again, so long as she has had a full opportunity to conduct
discovery.” Minadeo, 398 F.3d at 761 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257
(1986)).
Once the moving party demonstrates that “there is an absence of evidence to support the
nonmoving party’s case,” the non-moving party “must identify specific facts that can be
established by admissible evidence, which demonstrate a genuine issue for trial.” Amini v. Oberlin
Coll., 440 F.3d 350, 357 (6th Cir. 2006) (citing Anderson, 477 U.S. at 247–48; Celotex Corp. v.
Catrett, 477 U.S. 317, 324 (1986)). While the court must view the evidence in the light most
favorable to the non-moving party, the party opposing the summary judgment motion “must do
more than simply show that there is some metaphysical doubt as to the material facts.” Amini, 440
F.3d at 357. The existence of a mere “scintilla of evidence” in support of the non-moving party’s
position is insufficient. Daniels v. Woodside, 396 F.3d 730, 734–35 (6th Cir. 2005) (quoting
Anderson, 477 U.S. at 252). The non-moving party “may not rest upon [his] mere allegations,” but
must instead present “significant probative evidence” establishing that “there is a genuine issue
for trial.” Pack v. Damon Corp., 434 F.3d 810, 813–14 (6th Cir. 2006) (citations omitted).

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While a moving party without the burden of proof need only show that the opponent cannot
sustain his burden at trial, Minadeo, 398 F.3d at 761, a moving party with the burden of proof faces
a “substantially higher hurdle.” Cockrel v. Shelby Cty. Sch. Dist., 270 F.3d 1036, 1056 (6th Cir.
2001). “Where the moving party has the burden—the plaintiff on a claim for relief or the defendant
on an affirmative defense—his showing must be sufficient for the court to hold that no reasonable
trier of fact could find other than for the moving party.” Calderone v. United States, 799 F.2d 254,
259 (6th Cir. 1986) (quoting W. Schwarzer, Summary Judgment Under the Federal Rules:
Defining Genuine Issues of Material Fact, 99 F.R.D. 465, 487–88 (1984)). Accordingly, summary
judgment in favor of the party with the burden of persuasion is not appropriate “when the evidence
is susceptible of different interpretations or inferences by the trier of fact.” Hunt v. Cromartie, 526
U.S. 541, 553 (1999).
IV.

Analysis
Congress amended the Copyright Act in 1976 to create a “termination right,” that is, it

authorized the author of a work “to undo a prior transfer of his copyright and recapture all interests
in the copyright for himself.” Brumley v. Albert E. Brumley & Sons, Inc., 822 F.3d 926, 928 (6th
Cir. 2016). For works transferred on or after January 1, 1978, the author (or his successors, as
defined by the statute) could terminate the transfer between thirty-five and forty years after the
date the copyright was assigned to a third party. See 17 U.S.C. § 203(a)(3). If the work was
copyrighted and transferred before 1978, however, the author (or his successors as provided by the
Act) could terminate between fifty-six and sixty-one years after the work was copyrighted, or for
a period of five years after January 1, 1978, whichever was later. Id. § 304(c)(3). See Brumley, 822
F.3d at 928. 4
4

The Copyright Act was amended in 1998 to increase the length of the copyright term and
to provide an additional term during which the author may terminate: between seventy-five and

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These revisions were “expressly intended” to “protect authors against unremunerative
transfers.” H.R. Rep. No. 94-1476, at 124 (1976), reprinted in 1976 U.S.C.C.A.N. 5659, 5740; see
Mills Music, Inc. v. Snyder, 469 U.S. 153, 172–73 (1985) (noting that Congress’s intent to “relieve
authors of the consequences of ill-advised and unremunerative grants that had been made before
the author had a fair opportunity to appreciate the true value of his work product . . . is plainly
defined in the legislative history and, indeed, is fairly inferable from the text of § 304 itself”). Both
§ 203 and § 304 provide that termination of a prior grant “may be effected notwithstanding any
agreement to the contrary, including an agreement to make a will or to make any future grant.” 17
U.S.C. § 203(a)(5); id. § 304(c)(5). Based on this language, the termination right created by §§
203 and 304 has been repeatedly characterized as “inalienable.” See, e.g., N.Y. Times Co. v. Tasini,
533 U.S. 483, 497 (2001); Stewart v. Abend, 495 U.S. 207, 230 (1990); Peter S. Menell & David
Nimmer, Pooh-Poohing Copyright Law’s “Inalienable” Termination Rights, 57 J. Copyright
Soc’y U.S.A. 799, 807 (2010), cited in Brumley, 822 F.3d at 933.
This case involves a dispute over who has the right to exercise termination rights under the
Copyright Act. Underlying that issue, however, is the question of authorship of the copyrighted
works. Plaintiff Don Everly seeks a judicial declaration that Phil Everly is not a co-author of the
Subject Compositions and that the defendants’ Counterclaim asserting Phil Everly’s co-authorship
as the basis for their Notices of Termination is time-barred by the United States Copyright Act’s
three-year statute of limitations, 17 U.S.C. § 507(b). The plaintiff argues that, if Phil Everly is not
a co-author of the Subject Compositions, he never possessed termination rights under the
Copyright Act, and the defendants have no standing as the statutory heirs of an “author” to exercise

eighty years after the copyright was obtained. 17 U.S.C. § 304(d)(2). See Brumley, 822 F.3d at
928–29.

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rights granted exclusively to authors and their heirs under 17 U.S.C. §§ 203 and 304.
More specifically, Don Everly seeks summary judgment in his favor on Counts I and III of
the Complaint, and against the defendants on their Counterclaim, based on the statute of limitations
defense raised in Don Everly’s Answer to the Counterclaim. Alternatively, if the court finds that
the defendants’ claims are not barred by the statute of limitations, the plaintiff asks the court to
find that the 1980 Release is not a “grant of a transfer or license of copyright or of any right under
copyright” governed by 17 U.S.C. § 203 and, consequently, is not subject to termination under the
Copyright Act as a matter of law.
The defendants argue in response that: (1) the 1980 Release “relates only to the issues of
money and public credit – not ownership of the copyright . . . or authorship of the songs” (Doc.
No. 22, at 2); (2) the statute of limitations did not begin to run until shortly before Don Everly
initiated this action; (3) even if the statute of limitations is applicable, the plaintiff has not
established that the “plain and express repudiation” standard has been met (id.); and (4) the
interpretation of the 1980 Release and the applicability of §§ 203 and 304 present genuine issues
of material fact. The defendants ask that summary judgment be denied.
A.

The Statute of Limitations

The Copyright Act’s three-year statute of limitations applies to any civil action “maintained
under the provisions of this title.” 17 U.S.C. § 507(b). “All of the federal circuit courts of appeal
that have addressed the issue . . . agree that a determination of copyright ownership based on a
disputed allegation of co-authorship presents a federal question that arises under, and must be
determined according to, the Copyright Act.” Severe Records, LLC v. Rich, 658 F.3d 571, 582 (6th
Cir. 2011) (quoting Cambridge Literary Props., Ltd. v. W. Goebel Porzellanfabrik G.m.b.H. & Co.
KG., 510 F.3d 77, 86 (1st Cir. 2007). The Sixth Circuit, like most of the other federal appellate

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courts, has held that a “claim for copyright ownership ‘is barred three years from “plain and
express repudiation” of authorship.’” Roger Miller Music, Inc. v. Sony/ATV Publ’g, LLC, 477 F.3d
383, 390 (6th Cir. 2007) (quoting Ritchie v. Williams, 395 F.3d 283, 288 n.5 (6th Cir. 2005)). A
copyright ownership claim “accrues only once, and if an action is not brought within three years
of accrual, it is forever barred.” Id. (quoting Zuill v. Shanahan, 80 F.3d 1366, 1369 (9th Cir. 1996)).
Even where a plaintiff brings claims that are not, on their face, copyright claims or barred
by the applicable statute of limitations, courts have held that, where the claims presuppose
copyright ownership or other copyright interests and those interests are disputed, the claims are
barred if not brought within the three-year statute of limitations. See, e.g., Tomas v. Gillespie, 385
F. Supp. 2d 240, 246 (S.D.N.Y. 2005) (where the plaintiff sought to exercise a termination interest
under 17 U.S.C. §§ 203 and 304 as a natural child of Dizzie Gillespie, holding that “[t]he primary
remedy [the plaintiff] seeks is a declaration that she is Gillespie’s natural child and a co-owner of
the renewal copyrights,” and that such claims had accrued, at the latest, when the plaintiff was put
on notice that her claim of paternity had been repudiated); Weber v. Geffen Records, Inc., 63 F.
Supp. 2d 458, 464 (S.D.N.Y 1999) (“No cause of action, whether or not brought under the
Copyright Act, may be premised on a time-barred challenge to copyright.”); Margo v. Weiss, No.
96 Civ. 3842 (MBM), 1998 WL 2558, at *9 (S.D.N.Y. Jan. 5, 1998) (rejecting non-copyright
claims for breach of fiduciary duty and duty to account, because they were based on the assumption
that the parties had been co-authors, and the claim for co-authorship was time-barred).
In Ritchie, a promoter and a number of related entities brought suit in state court against
singer-songwriter Kid Rock, asserting breach-of-contract claims under state law. Kid Rock
removed the case to federal court on the grounds of preemption, and the case was consolidated
with a trademark case Kid Rock had already filed in federal court against the plaintiffs in the

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removed case. The Sixth Circuit held that the contract claims—which amounted to copyright
infringement claims—were completely preempted by the Copyright Act and, therefore, that the
district court had not erred in permitting removal of the claims to federal court and exercising
jurisdiction over them. The court also held that the claims accrued in 1990, when Kid Rock wrote
a letter, forwarded to the defendants, “flatly stating that he did not intend to work with the parties
to the 1989 contracts with respect to the publishing, production or performance of his songs” and
“made it clear that he regarded the songs he had written as his songs. Thereafter, he openly claimed
exclusive ownership of the ‘Top Dog’ label and the rights to his songs.” Ritchie, 395 F.3d at 288.
The court held that, because the defendants had waited ten years to file suit on these claims, they
were barred by the three-year statute of limitations. Id. at 288–89. See also Zuill, 80 F.3d at 1368
(“We conclude that claims of co-ownership . . . accrue when plain and express repudiation of coownership is communicated to the claimant, and are barred three years from the time of
repudiation.”).
B.

The Defendants’ Ownership Claim

This case is in an unusual procedural posture, and neither party has pointed to any precedent
that is directly on point. Here, the original grant and copyright registrations identified both Don
and Phil Everly as co-authors of the Subject Compositions. In all of the above-referenced cases,
the plaintiff’s copyright-related claims were barred by the statute of limitations. In this case, the
plaintiff seeks a declaration that any claims based on Phil Everly’s co-authorship of the Subject
Compositions are barred by the statute of limitations and that Don Everly alone has the ability to
exercise statutory termination rights. He asserts that the three-year statute of limitations bars the
defendants’ counterclaims as well as their defenses to his claims, as they all require a
predetermination that Phil Everly was a co-author of the Subject Compositions.

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The defendants insist that Don Everly’s first “plain and express repudiation” of Phil
Everly’s co-authorship did not take place until Don sent a demand letter to Phil’s estate in October
2017, shortly before the filing of the Complaint. 5 They contend that the 1980 Release, standing
alone, could not have triggered the running of the limitations period, because it does not qualify
as a plain and express repudiation of authorship. They argue that the 1980 Release does not
expressly state that Phil did not write the Subject Compositions or “renounce[] Phil Everly’s
authorship contribution to the [Subject Compositions].” (Doc. No. 22, at 6.) They argue that, even
as late as 1984, Don Everly publicly acknowledged that “Cathy’s Clown” was jointly authored by
both brothers. 6
For his part, the plaintiff contends that he unequivocally claimed sole authorship of the
Subject Compositions beginning no later than June 1980. He points to Jason Everly’s and Patti
Everly’s acknowledgments that Phil Everly communicated with Don Everly in 1980, demanding
that Phil Everly give up any claim to co-authorship of the Subject Compositions. They effectively
concede that Phil signed the 1980 Release as a direct result of that demand.
The plaintiff also argues that, irrespective of whether the 1980 Release itself constitutes a
plain and express repudiation of authorship, the accumulation of events that followed the execution

5

The defendants do not argue that the plaintiff’s claims are barred by the statute of
limitations.
6

During Don Everly’s deposition, the defendants played a video recording from 1972 and
an audio recording from 1984 in which Don was apparently interviewed regarding the genesis and
creation of “Cathy’s Clown.” These recordings were made exhibits to Don Everly’s deposition,
but the defendants did not introduce them into evidence in support of their opposition to the
plaintiff’s Motion for Summary Judgment. At his deposition, Don was asked why he stated during
both of those interviews that Phil Everly co-wrote “Cathy’s Clown.” (Doc. No. 19-5, Don Everly
Dep. 16–17.) Don responded that Acuff-Rose wanted him to put Phil’s name on the works because
“you know, it’s better for the career,” so he did. (Id. at 17.) He reaffirmed during his deposition,
however, that Phil did not co-write Cathy’s Clown. (Id.)

16
of that Release amounts to a plain and express repudiation. For example, he points out, after
receiving notice of the Release, Acuff-Rose and BMI changed their records to reflect that Don was
the sole author of the Subject Compositions. Licenses for “Cathy’s Clown” issued after June 1980
identified Don as the sole author. Reba McIntyre’s cover of the song credited Don as the sole
author, and Don received a BMI award as sole author of the song. Phil was aware of all of these
events, but he never reneged on the agreement as embodied in the 1980 Release, and he never
publicly refuted Don’s claim of sole authorship during his lifetime. Further, in January 1988,
Acuff-Rose, as the “duly authorized agent of Don Everly,” renewed the copyright to “Cathy’s
Clown.” (Doc. No. 1-5.) Don Everly is the sole renewal claimant listed on the renewal form, and
Don Everly alone is identified as the “author” of the words and music to “Cathy’s Clown” in the
Renewal Registration. (Id.) In 2011, Don Everly exercised his termination rights with respect to
all three Subject Compositions by filing a Notice of Termination of the 1960 Grants to recapture
100% of the United States copyright in the Subject Compositions, effective April 14, 2016. Don
Everly’s Notice of Termination was recorded in the U.S. Copyright Office effective July 15, 2011.
(Doc. No. 1-6, at 4–5.) The plaintiff argues that all of these events together establish a plain and
express repudiation of Phil’s co-authorship of the Subject Compositions that took place more than
three years prior to the filing of the defendants’ counterclaim.
The court finds, based on the totality of the evidence referenced above, that Don Everly
plainly and expressly repudiated Phil Everly’s claim to joint authorship of the Subject
Compositions no later than 2011, when Don filed his Notice of Termination. Accord Cambridge
Literary Props., 510 F.3d at 91 (viewing the totality of the circumstances to conclude that the
statute of limitations began running no later than 1995, including the existence of “[p]ublicly
available documents in the Copyright Office,” prior litigation that cast doubt on a claimant’s rights,

17
and the defendant’s having long “engaged in widespread exploitation of at least some portion of
those rights . . . without remuneration to [the claimant]”). The 2011 Don Everly Notice of
Termination filed in the Copyright Office was a public record. See Ray Charles Found. v.
Robinson, 795 F.3d 1109, 1117 (9th Cir. 2015) (noting that the Copyright Office has expressly
stated that it “serves as an office of public record” (quoting Compendium of Copyright Office
Practices III § 2305 (2014))). And only a sole author would have the ability to terminate a grant
and recapture 100% of the United States copyright in the Subject Compositions, as Don purported
to do in his Notice of Termination. 17 U.S.C. § 304(c)(1). In addition, the defendants are presumed
to know the law and their rights thereunder. See, e.g., Hal Roach Studios, Inc. v. Richard Feiner
& Co., 896 F.2d 1542, 1548 (9th Cir. 1989) (“[A]s a matter of law, [the defendant] knew or should
have known of the change in the copyright law which established their cause of action for
reformation [of a contract] as of . . . the effective date of the Copyright Act of 1976.”). Don
Everly’s 2011 Notice of Termination, in conjunction with all the events that had taken place before
it, constituted a plain and express repudiation of Phil Everly’s authorship of the Subject
Compositions. Consequently, the defendants’ Counterclaim for a declaration that Phil Everly is an
author of the Subject Compositions is barred by the three-year statute of limitations.
Because the authorship claim is barred, the defendants’ request for a declaration as to the
validity of their Notices of Termination under 17 U.S.C. §§ 304(c) and 203(a) is also barred, as
are their defenses to the plaintiff’s claim to sole authorship, and the plaintiff is entitled to judgment
in his favor on Counts I and III of the Complaint.
The conclusion that the defendants have no statutory termination rights effectively moots
Count II of the plaintiff’s Complaint, which seeks a declaration that the 1980 Release is not a grant
subject to termination pursuant to 17 U.S.C. § 203(a). Because the defendants’ termination rights

18
are dependent upon their underlying claim that Phil Everly is an author of the Subject
Compositions, which is time-barred, their attempt to terminate the 1980 Release is ineffective,
regardless of whether it is subject to termination in the first place. The court, therefore, will not
address the merits of that claim.
V.

Conclusion
For the reasons set forth herein, the defendant’s Motion for Summary Judgment will be

granted, and this case will be dismissed. An appropriate Order is filed herewith.
ENTER this 6th day of November 2018.

____________________________________
ALETA A. TRAUGER
United States District Judge