Thursday, January 11, 2018

The Everly Brothers, Cathy's Clown, Copyright and the Price of Love

I revere the Everly Brothers.  As any music fan knows, their unique style of harmony singing forms the basis for modern rock music and their albums are full of fabulous songs.  I was happy when they reunited in the 1980s after their acrimonious split and they made some more great records.  Sadly, Phil Everly passed away 4 years ago on January 3, 2014.  Now the Everly Brothers saga appears to be continuing  in a courtroom which is tragic but fascinating from a copyright standpoint.

 In November 2017, Don Everly filed suit against his late brother's widow and sons, seeking a declaratory judgment as to his sole authorship of the song "Cathy’s Clown".  The facts of the lawsuit are really complicated.

 In March 1960, Don and Phil signed an agreement transferring the copyright to the song "Cathy’s Clown" to their publisher Acuff-Rose.  According to the complaint, Don contacted Phil in 1979  (during their split) and asked him to recognize that he (Don) was the sole author of the song.  Phil apparently agreed to this request because in June 1980 he executed a "Release and Assignment" releasing any interest he had in the musical composition, among others.  Publishing records were changed and for the next 36 years Don Everly was recognized as the sole author of "Cathy’s Clown" (don't feel too bad for Phil, he was the sole author of "When Will I Be Loved".  On March 11, 2011 Don served a notice of termination of assignment of copyright on Sony/ATV seeking to terminate the assignment of copyright to "Cathy’s Clown", which under Sec. 304(c) of the Copyright Act, he is entitled to do as author.  However, Don learned that Phil's widow and one of his sons filed a similar notice of intention to terminate on November 17, 2014 and that on August 11, 2016 served a notice to terminate the 1980 release.

If I understand this correctly, Phil's heirs are now attempting to terminate not only the original 1960 grant as well as the 1980 document wherein Phil Everly  released "his claims as co‑composer".

 Predictably, Don's complaint has been met with an answer and a counterclaim.  Interestingly many of the defenses are equitable in nature – unclean hands, laches, failure of consideration.  As sad as all of this is, there are some really interesting issues being presented here.  For example, if Phil was not an author did he have the right to terminate the assignment to Sony/ATV?  On the other hand nowhere in the 1980 Release and Assignment does Phil admit that he was not the co-author of "Cathy’s Clown".  He simply released "his claim as co‑composer".  Can Phil's current claim withstand a statute of limitations defense?  Did the estate act with unclean hands?


 I can only imagine that if this case does not settle it will delve into some murky issues that need to be addressed under the termination provisions of the Copyright Act. Part of me wishes, though, that this dispute was being argued  by anyone other than the Everly Brothers.    

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