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No Clowning Around About Copyright Authorship: Everly v. Everly

MSK Client Alert
May 7, 2020

In Everly v. Everly, No. 19-5150 (6th Cir. 2020, May 4, 2020), the Sixth Circuit weighed into a fraternal feud that has continued long after the death of Phil Everly, who, with his brother Don, performed as the iconic rock & roll duo The Everly Brothers. The questions before the court: when Phil in 1980 granted his ownership rights to Don in the hit song Cathy’s Clown, did Don expressly repudiate Phil’s status as a co-author of the song? Or did Phil retain his rights as a co-author?

The Everly Brothers released the hit classic Cathy’s Clown in 1960.  Phil and Don were listed as co-authors, received royalties, and publicly presented themselves as co-authors. In 1980, after the brothers stopped speaking, Don asked Phil for the rights to Cathy’s Clown. The brothers executed a Release and Assignment in which Phil agreed to “release, and transfer, [  ] all of his rights, interests and claim in and to [Cathy’s Clown and other] compositions, including rights to royalties and his claim as co-composer, effective June 1, 1980.” Although after the 1980 Release and Assignment, Acuff-Rose listed only Don as author, the brothers made public statements crediting Phil as a co-author.

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