Everly v. Everly

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

Case No. 3:17-cv-01440

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

September 22, 2020

Judge Aleta A. Trauger

MEMORANDUM

Before the court are the defendants' Motion for Judgment as a Matter of Law and Memorandum of Law in Support (Doc. No. 69), and the plaintiff's Motion for Partial Summary Judgment, filed with a separate Memorandum (Doc. Nos. 70, 71). For the reasons stated herein, the plaintiff's motion will be granted, and the defendants' motion will be denied.

I. FACTUAL BACKGROUND¹

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.)

Phil Everly is survived by his third wife, Patrice Everly ("Patti Everly"), and two sons, Phillip J. Everly ("Jason Everly") and Christopher Isaac Everly ("Chris Everly"). Patti, Jason, andChris Everly are the defendants in this action.

One of the Everly Brothers' most famous hits was the song "Cathy's Clown," which was recorded and released in 1960. (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 "Cathy's Clown." By agreement dated March 21, 1960 (the "1960 Grant"), Don and Phil Everly assigned 100% of the worldwide copyright in "Cathy's Clown" to Acuff-Rose Publications ("Acuff-Rose"). (Doc. No. 1-1.) Even after assigning the copyright in "Cathy's Clown" to Acuff-Rose, Don and Phil retained the contractual right to the so-called songwriter's share of royalties derived from the song. (Id.; Doc. No. 23 ¶ 4.)

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. They also publicly described the process of writing the song as a joint effort. For instance, in 1972, Don and Phil were interviewed on The David Frost Show, during which Don stated that the brothers wrote "Cathy's Clown" together, and Phil described how they worked together on the song. (Doc. No. 37.)

The crux of this dispute arises from the fact that Don Everly now claims sole authorship of "Cathy's Clown" (see Doc. No. 19-1 ¶¶ 3, 6; Doc. No. 19-5, Don Everly Dep. 11, 22²) and seeks a judicial declaration to that effect. Although that contention is in dispute, and the events leading up to Phil's execution of a document entitled "Release and Assignment" (the "1980 Release") are contested, there is no dispute that, on June 10,1980, Phil signed this 1980 Release, which, first,acknowledges that Don and Phil entered into the 1960 Grant "transferring" "Cathy's Clown" to Acuff-Rose as publisher and that the 1960 Grant "listed both Phil Everly and Don Everly as composers" of "Cathy's Clown." (Doc. No. 1-3.) In pertinent part, the 1980 Release then states that Phil "desires to release, and transfer, to [Don] all of his rights, interests and claim in and to ["Cathy's Clown"], including rights to royalties and his claim as co-composer, effective June 1, 1980." (Id.) In exchange for the recited consideration of $1.00, Phil did "transfer, release, assign and set over unto Don . . . all of his rights, titles, interests and claim to" "Cathy's Clown", the copyright to which was noted still to be owned by Acuff-Rose. (Id.) The transfer "include[d] not only [Phil's] right to royalties and other income arising out of ["Cathy's Clown"] from and after the effective date, but also every claim of every nature by him as to the composition[] of said song[]." (Id.) Finally, the 1980 Release directed Acuff-Rose and the performing rights society, Broadcast Music, Inc. ("BMI"), 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" of the agreement. (Id.)

The 1980 Release was recorded in the United States Copyright Office and filed with BMI and Acuff-Rose shortly thereafter. (Doc. No. 19-9, at 2; (Doc. No. 19-1 ¶¶ 17, 18.) BMI and Acuff-Rose Publications modified their records to reflect that Don Everly was the sole "author" of "Cathy's Clown" (Doc. No. 19-11, at 2, 5), 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 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).) In addition, the 1984 biography of the Everly Brothers, Walk Right Back, reports Phil's description of the writing of "Cathy's Clown" as follows:

Don called me and said he'd started writing a song and could I come over. He'd written the chorus of Cathy's Clown and had the melody for the verses. I just put together the verses and it was finished. We went into the studio and cut in maybe two days and we knew it was a hit.

(Doc. No. 19-5, at 11-12, Don Everly Dep. Ex. 2.) In a 1984 television interview, the brothers seemed to corroborate that version of events. (Doc. No. 37.) In a booklet for the Everly Brothers' 1994 box set Heartaches and Harmonies, Phil is reported to have similarly stated: "Donald had the chorus for ["Cathy's Clown"]. I went over to his house, because we lived across the street [from each other] at that time, and wrote the verses—although my name's not on it any longer." (Doc. No. 41-1, at 11.) The defendants also allege that Phil continued to privately maintain 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.) Nonetheless, 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 "Cathy's Clown" or the enforceability of the 1980 Release. (Doc. No. 19-2, Patti Everly Dep. 30.)

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 and the sole "author" of the words and music to "Cathy's Clown" identified on the Certificate of Renewal Registration. (Id. at 2.)

In 2011, Don Everly engaged counsel to exercise his United States copyright termination rights with respect to "Cathy's Clown" by filing a notice to terminate the 1960 Grant pursuant to 17 U.S.C. § 304(c)³ and recapture 100% of the United States copyright in "Cathy's Clown," 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 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 "Cathy's Clown."

Also in 2011, Don authorized his attorney to file paperwork in the U.S. Copyright Office to remove Phil's name as author of "Cathy's Clown" on the original 1960 copyright registration. (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 "Cathy's Clown." (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. "Cathy's Clown" was not among these songs and was not listed on any of the notices of termination prepared by Copyright Recapture. (Doc. No. 19-13, at 9-25.)

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," effective November 14, 2016 (the "2014 Notice of Termination"), pursuant to 17 U.S.C. § 304(c). (Doc. No. 1-7, at 4-9.) 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 ...