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The U.S. Sixth Circuit Court of Appeals affirmed a Tennessee federal judge’s decision that, as a matter of law, Don Everly was the sole uncontested writer of the 1960 Everly Brothers hit “Cathy’s Clown”.

There has been a decades-long argument between the now both deceased brothers Don and Phil Everly. Phil Everly died in 2014; Don passed away a few months after the trial in this matter in 2021.

Adams and Reese Special Counsel and Entertainment/Copyright Attorney Phil Kirkpatrick and Linda Edell Howard (Edell Howard Enterprises LLC) filed the lawsuit on behalf of Don Everly in November 2017.

Kirkpatrick and Edell Howard, along with Adams and Reese Partner Joshua Counts Cumby, tried the case in Federal Court in Nashville. Kirkpatrick and Cumby then handled the appeal on behalf of Don’s estate.

“If an author challenges the contribution to a song or another creative work by someone who claims to be a co-author, the one claiming to be a co-author would be well-advised to determine whether to take legal action. Otherwise, they may risk losing the ability to assert a co-authorship claim,” said Kirkpatrick.  

Kirkpatrick added in an interview with Law360: “We wish Don was still here to experience the court of appeals holding.”

Law 360 reported: “The holding on the law that the panel and the lower court had endorsed maintained that Phil Everly’s descendants were too late to contest Phil’s decision to give up his right to having co-authored the song. According to the filings, Phil had signed it over and then had ‘continued to grumble about it for the next twenty or thirty years.’ ”

The case is Adelaida Garza v. Patrice Everly, et al., case number 21-5530, in the U.S. Court of Appeals for the Sixth Circuit. The appeals court decision, filed Feb. 10, affirmed the decision by the United States District Court for the Middle District of Tennessee in April 2021.

Following the song’s debut in 1960, the copyrights listed Phil and Don as authors. Both brothers were credited as co-authors and received royalties. Some twenty years later, long after the two had a falling out, Don pressured Phil by letter and thereafter by phone call to take his name off the song.

“Joey Paige, former bass player for the Everly Brothers and close friend of Phil’s, testified that he was present when Phil received the phone call from Don and that Phil said he would give the song back to Don,” wrote U.S. Circuit Judge John K. Bush for a panel that upheld the ruling of U.S. District Judge Aleta A. Trauger.

Judge Bush also wrote that the court was swayed by testimony of the phone call between the brothers in 1980, along with further testimony from another “close friend of Phil's” that indicated Phil told her that he had “given up his share of writing” in “Cathy’s Clown.”

Ultimately, the court of appeals found that the trial court did not commit clear error in finding that Don repudiated Phil’s authorship around the year 1980. Also, in 1980, Phil signed five notarized documents titled “Release and Assignment” that relinquished “his claim as co-composer.”

U.S. Circuit Judge Eric E. Murphy, who sat on the panel with Judge Bush, wrote the concurrence, agreeing with the majority holding, but saying it didn’t make “legal sense” to use the “express repudiation” test in determining when the statute of limitations begins running over a copyright claim.

In an article by Westlaw, the publication reported: the appeals court ruled that the Copyright Act’s three-year statute of limitations for asserting a claim of authorship applies not only to a plaintiff but also in some cases to a defendant – a defendant who seeks to assert an affirmative defense of authorship (at least when in response to a claim of authorship by the plaintiff) may do so only within three years of the time the authorship claim was repudiated.