Intellectual Property News and Reports

The Everly Brothers are one of the most famous duos in popular American music history. When Dick Clark introduced them to sing Cathy’s Clown on his American Bandstand television show, he said the song “has a sound all its own”—one he called a “little unusual, [a] little strange, but very, very successful, and it’s done in the inimitable style of the fellas who have done so many other hits.”

This dispute over the authorship of Cathy’s Clown is likewise a little unusual and a little strange. And, as we discuss, it is the jury’s obligation to sort it all out. Each side to this appeal—Don Everly, on the one hand, and the successors-in-interest of his brother, the late Phil Everly, on the other—claims to have a copyright interest in Cathy’s Clown. Don maintains he authored the song by himself, but Phil’s successors contend the brothers wrote it together. Don sued Phil’s successors, seeking a declaration that Don was the sole author, while Phil’s successors counterclaimed for declaratory relief that both brothers were authors. The district court granted summary judgment to Don, finding that the claim of Phil’s co-authorship was barred by the statute of limitations because Don expressly repudiated Phil’s co-authorship, and thus triggered the statute of limitations, no later than 2011. Because there is a genuine factual dispute as to whether Don made such an express repudiation, we REVERSE.

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