On May 4, 2021, a United States District Court in the Middle District of Tennessee granted declaratory judgment in a dispute over the rights to the 1960s hit song “Cathy’s Clown.” This was the culmination of a longstanding dispute between Don Everly (“Don”) and his late brother Phil Everly’s (“Phil”) heirs.
The Everly Brothers performed together for over a decade before splitting in the early 1970s. The two did not speak again until Don called Phil in 1980 and demanded that Phil sign over his rights to “Cathy’s Clown” and sixteen other Everly Brothers songs. Despite some initial reluctance, Phil finally agreed to sign a release (“the release”) transferring Don’s rights.
It is not clear whether Phil co-wrote the songs. The brothers stated that Phil and Don wrote the songs together until the group split in the early 1970s. However, since 1980 Don has maintained that he was the sole author and only gave Phil credit because a music industry executive told him that The Everly Brothers would be more popular if the public believed the brothers wrote the songs together.
A few months after Phil passed in 2014, his heirs attempted to terminate the brothers’ copyright assignment in 1960 to a music publisher. Presumably, after noticing that his brother’s heirs were trying to enforce rights that his brother had released to him, Don filed suit in 2017 seeking a declaratory judgment that he retained all rights to and revenues derived from “Cathy’s Clown” and the other songs. In response, Phil’s heirs filed a counterclaim, seeking to split the rights to and revenues derived from the songs with Don.
Phil had attempted to terminate releases he signed related to twenty-two songs before he passed but never attempted to terminate the 1980 release. In the court’s opinion, this clearly showed that Phil knew how to terminate grants and knew how to ask for help in doing so. According to the court, this suggested that Phil never intended to terminate the 1980 release. The court further held that even if Phil had intended to terminate the release, any claim he could have brought against Don was barred by the statute of limitations after 1983 because Don had expressly “repudiated” (i.e., disclaimed or rejected) Phil’s rights in the songs in 1980. Thus, the court ultimately granted declaratory judgment for Don.
Don Everly is represented by Philip M. Kirkpatrick, Linda Frances Howard, and Joshua Counts Cumby of Adams & Reese LLP.
Phil Everly’s heirs are represented by Jay S. Bowen and Jacob T. Clabo of Shackelford Bowen McKinley & Norton LLP.
The case is Isaac Donald Everly v. Patrice Y. Everly et al., case number 3:17-cv-01440, in the U.S. District Court for the Middle District of Tennessee.
* Lowe & Associates (“The Firm”) is an entertainment and business law firm located in Beverly Hills, California. The Firm has extensive experience handling cases involving copyright and music law, providing top-quality legal services to its clients since 1991. The Firm is recognized for its many achievements, including successfully litigating many high-profile cases.
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