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.    

Ray Charles and the Problems of Estate Planning for Songwriters

Those practitioners who deal with estate planning issues for artists and songwriters are going to be paying attention to the decision of the California Federal District Court in the  Ray Charles Foundation v. Raenee Robinson, et al case which was decided in January.  In that case, the Court upheld the right of  seven of Ray Charles' twelve children to serve 39 notices of copyright termination on various entities including Warner/Chappell.  The heirs are exercising their statutory right to terminate assignments of copyright despite the fact that each of these children had agreed contractually that upon receipt of $500,000.00 each in an irrevocable trust that they “would  not inherit anything further under my father's estate plan and I am waiving my right to make a claim against his estate."

 

            Ray Charles entered into these agreements with his children and then apparently left his right to receive additional royalties from these compositions to his foundation – a charitable organization .   Clearly he intended to provide for his children but also to provide for those less fortunate.

            By attempting to terminate the copyright assignments, the children have the potential to redirect the income from these works to themselves, thereby thwarting their father’s charitable plans.

            In seeking declatory relief, the foundation argued that the children breached their agreement with their father by filing the termination notices.

            The Court concluded (1) that there could be  no claim against the estate because the estate had in fact been through probate and was closed and (2) because Section 304(c) of the Copyright Act provides that the termination right is inalienable and may be exercised "notwithstanding any agreement to the contrary" that the foundation did not have standing to stop the heirs from filing these notices of termination.  Note that Warner/Chappell did not contest the notices.

            The rationale in this case is pretty straightforward and it is difficult to know if the 9th Circuit will do anything different on appeal.

            As an important footnote, the Court goes to great lengths to explain that the holdings in the Milne case and the Steinbeck case were not relevant here.  In those cases, the original statutory heirs somehow terminated the original grants themselves and abrogated the whole "inalienable" concept.  The Court also noted the important lesson from the Larry Spier, Inc. v. Bourne Co. case that the intent of an author in executing a will is irrelevant under Section 304(c) because "if the author's intent were the paramount concern of the statute, then no termination of any kind would be allowed because most authors presumably intend to make the assignment that is the very object of Section 304(c)'s termination provisions".

            Therein lies the problem.  While the termination provisions of the Copyright Act serve an important purpose  they can subvert an author's original intent, no matter how beneficial and noble that intent might have been.  Artists and songwriters  contemplating long-term estate plans should be keenly aware of the potential impact of these provisions and plan accordingly,  to the extent possible.