It’s a question we know has been keeping you up at night, as you reach deep into your quarantine discography: who is (or are) the true author(s) of the Everly Brothers hit, Cathy’s Clown?  Sadly, those looking for finality will have to wait.  On Monday, a Sixth Circuit panel held that question must be resolved by a jury.  As Dick Clark presciently recognized on American Bandstand, the song is “a little unusual, a little strange,” and so is the dispute in Everly v. Everly.

Brothers Out of Tune

Don and Phil Everly—together, the Everly Brothers—recorded and released Cathy’s Clown in 1960 and both shared in its success for many years.  The brothers, originally credited as co-authors, each granted 100% of the copyrights to Cathy’s Clown to a publication company in exchange for royalties.  Unfortunately, the brothers’ musical harmony did not extend to their personal relationship, and by 1973 Don and Phil had ceased speaking to each other.  Phil passed away in 2014, but now, Don and Phil’s successors each claim to have copyright interests in Cathy’s Clown.  Don claims he is the sole author of the song, while Phil’s successors maintain the brothers wrote the song together.

Don sued Phil’s successors in 2017, seeking a declaration that his late brother is not a co-author of Cathy’s Clown and Don owns 100% of the copyright termination rights in the song, including 100% of the royalties.  Phil’s successors counterclaimed for a declaration that both brothers were authors.  The district court granted summary judgment in favor of Don, which turned on the court’s finding that Phil’s authorship had been expressly repudiated no later than 2011 (when Don filed his copyright termination notice and claimed to be sole author of Cathy’s Clown), thus triggering the 3-year statute of limitations.  Accordingly, the district court ruled, any claim Phil may have had to authorship was forfeit by 2014.

Jury To Sort It Out

In a split decision (Bush, J., opinion, joined by Murphy, J.), the Sixth Circuit reversed.  It held that a genuine factual dispute existed regarding whether Don expressly repudiated Phil’s authorship.  Analogizing to “the doctrine of adverse possession in real property,” the court explained the statute of limitations for a copyright ownership claim begins to run whenever one author makes a “plain and express repudiation” of authorship against a putative co-author.  Because the record did not establish such a plain and express repudiation as a matter of law by Don against Phil as a co-author, the court enlisted the jury “to sort it all out.”

Doubt-Filled Concurrence

Judge Murphy, although agreeing with the outcome, wrote separately to “express doubt over [whether the plain-and-express repudiation] test is the right way to think about the start date for this statute of limitations.”  Judge Murphy takes issue with the well-worn “groove” courts “have gotten into” of mechanically applying the plain-and-express repudiation test—a “discovery rule” that triggers the statute of limitations period when a putative author “discovers or should have discovered” a co-author’s clear challenge to the others’ authorship status.  According to the concurrence, the text of the Copyright Act and Supreme Court precedent mandate a copyright authorship claim accrues (i.e., the statute of limitations begins to run) “on the date that a violation of the plaintiff’s legal right has occurred.”  As Judge Murphy sees it (quoting Nimmer on Copyright), “courts ‘should not deem the statute of limitations to start running until [a] claim has matured to the point of being legally cognizable.’”  And, Judge Murphy “do[es] not think one owner’s notice disputing another’s ownership interest suffices to create a ‘complete and present’ claim in this ownership context.”

But after setting the hook, Judge Murphy stops short of reeling in the catch.  He “remain[s] unconvinced by the plain-and-express-repudiation test,” but “confess[es] doubt . . . over when this sort of ‘claim’ does ‘accrue’ under the statute of limitations.”  The “few possibilities” apart from the plain-and-express repudiation test put forth in the concurrence admittedly “fray” and “wrinkle” by interjecting principles of “state-created claim[s],” thus calling into question the applicability of the Copyright Act’s statute of limitations altogether.  But, according to the concurrence, those “difficult questions [are] for another day,” and for some other “poor soul”—likely the Supreme Court—“tasked with getting [the courts] out” of their unfortunate groove.