ISAAC DONALD EVERLY,
`
`
`Plaintiff,
`
`
`v.
`
`PATRICE Y. EVERLY, PHILLIP J.
`EVERLY, CHRISTOPHER EVERLY,
`THE PHILLIP EVERLY FAMILY
`TRUST and EVERLY AND SONS
`MUSIC (BMI),
`
`
`Defendants.
`
`
`
`
`
`Case No. 3:17-cv-01440
`Judge Aleta A. Trauger
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE MIDDLE DISTRICT OF TENNESSEE
`NASHVILLE DIVISION
`
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`
`MEMORANDUM
`
`
`
`Isaac Donald Everly (“Don” or “Don Everly”), the plaintiff and counter-defendant in this
`
`action, and Phillip Everly (“Phil” or “Phil Everly”), who died in 2014, are brothers and comprised
`
`the music group, the Everly Brothers. Phil Everly is survived by his third wife, Patrice (“Patti”)
`
`Everly, and two sons, Phillip J. Everly (“Jason Everly”) and Christopher Isaac Everly (“Chris
`
`Everly”), by his first and second wives, respectively. Patti, Jason, and Chris Everly are the
`
`defendants and counter-plaintiffs in this action.1
`
`
`
`One of the Everly Brothers’ most famous hits is the song “Cathy’s Clown,” which was
`
`recorded and released in 1960. This case, reduced to its essence, is about who “authored” the song
`
`and, if both Don and Phil co-authored the song, whether Don Everly plainly and expressly
`
`repudiated Phil Everly’s status as a co-author more than three years before the defendants filed
`
`their counterclaim. If so, those claims, all of which are premised upon Phil’s status as a co-author
`
`
`1 Chris Everly, who is apparently disabled, has not been an active participant in this lawsuit.
`
`Case 3:17-cv-01440 Document 103 Filed 05/04/21 Page 1 of 30 PageID #: 2290
`
`

`

`
`of the song, are barred by the statute of limitations.
`
`2
`
`
`
`The parties had the opportunity to fully develop the record regarding these issues during a
`
`two-day bench trial conducted on April 27 and 28, 2021. After consideration of the testimony and
`
`exhibits presented at the trial, the court will enter judgment in favor of Don Everly.
`
`I.
`
`
`
`PROCEDURAL HISTORY
`
`Don Everly filed his Complaint for Declaratory Judgment (Doc. No. 1) on November 8,
`
`2017, against Patti Everly, Jason Everly, and Chris Everly as the statutory successors to Phil
`
`Everly’s termination rights under the United States Copyright Act (“Copyright Act”), specifically
`
`17 U.S.C. §§ 304(c) and 203(a), and against the Phillip Everly Family Trust (“Trust”) and Everly
`
`and Sons Music (BMI) (alleged to be an assumed name for the Trust (Doc. No. 1 ¶ 8)), as a legal
`
`owner or successor to Phil Everly’s rights or as a legal owner of the statutory successors’ rights
`
`(collectively “defendants”). The Complaint contains three “Counts,” each seeking a declaratory
`
`judgment, only two of which remain relevant: Count 1 seeks a declaration that Phil Everly is not
`
`an author of “Cathy’s Clown” (hereinafter also referred to as the “Composition”) and, therefore,
`
`that the defendants are not the statutory successors of an author with respect to the Composition
`
`and are estopped from exercising any rights granted to authors of copyrighted works, including
`
`the ability to terminate the March 21, 1960 assignment (the “1960 Grant”) of 100% of the
`
`worldwide copyright in the Composition to Acuff-Rose Publications (“Acuff-Rose”); Count 3
`
`seeks a declaration that Don Everly owns 100% of the U.S. copyright in “Cathy’s Clown” and
`
`100% of the songwriter royalties derived from that work. (Doc. No. 1, at 12–13.) In addition, Count
`
`2 sought a declaration that the “Release and Assignment” signed by Phil on June 10, 1980
`
`pertaining to “Cathy’s Clown” (the “1980 Release”), discussed in more detail below, is not a grant
`
`of a transfer or license of copyright or of any right under a copyright and, therefore, is not subject
`
`to termination under 17 U.S.C. § 203(a).
`
`Case 3:17-cv-01440 Document 103 Filed 05/04/21 Page 2 of 30 PageID #: 2291
`
`

`

`The defendants filed an Answer and Counterclaim (Doc. No. 5) on November 29, 2017.
`
`3
`
`
`
`
`The Counterclaim seeks declarations that (1) Phil Everly is an author of “Cathy’s Clown”
`
`“pursuant to 17 U.S.C. § 203”; (2) the defendants’ Notice of Termination to Sony/ATV dated
`
`November 8, 2014 (“2014 Notice of Termination”), purporting to terminate the 1960 Grant, with
`
`an effective date of November 14, 2016, was valid under 17 U.S.C. § 304(c); and (3) the defendants
`
`are “entitled to one-half of the income earned from the exploitation of the Composition.”2 (Doc.
`
`No. 5, at 7.)
`
`
`
`The court issued an order granting summary judgment to plaintiff Don Everly on
`
`November 6, 2018, finding that Don had expressly repudiated Phil’s claim of authorship more than
`
`three years prior to the filing of the defendants’ Counterclaim. (Doc. No. 27.) The Sixth Circuit
`
`reversed and remanded, finding that a material factual dispute existed as to whether Don had
`
`expressly repudiated Phil’s authorship of “Cathy’s Clown” at all. Everly v. Everly (“Everly I”),
`
`958 F.3d 442 (6th Cir. 2020). This court subsequently construed the scope of the remand as general
`
`rather than limited, as a result of which “all claims at issue in the Complaint and Counterclaim
`
`remain[ed] pending [following remand], effectively without limitation.” (Doc. No. 65, at 4.)3
`
`
`
`Recognizing that the resolution of certain questions of law that had never been considered
`
`on the merits might narrow and simplify the trial of this matter, the court granted the parties’
`
`
`2 The Counterclaim does not specify a date on which the defendants claim to have become
`entitled to income from the exploitation of the Composition, but their Proposed Findings of Fact
`and Conclusions of Law filed in anticipation of the bench trial assert that the defendants are entitled
`to one-half the income derived from the exploitation of “Cathy’s Clown” “in the United States
`from November 14, 2016 (the effective date of termination) through the present.” (Doc. No. 88, at
`19.) Neither party has requested that the court order any type of accounting.
`3 The exception to the general remand is that this court also awarded summary judgment
`to the plaintiff as to the authorship of two other compositions. Because the defendants did not
`appeal that portion of this court’s judgment, the Sixth Circuit found that the defendants had
`“forfeited any argument” regarding those two compositions and affirmed summary judgment for
`the plaintiff on the claims related to them. Everly I, 958 F.3d at 448 n.6.
`
`Case 3:17-cv-01440 Document 103 Filed 05/04/21 Page 3 of 30 PageID #: 2292
`
`

`

`
`request that they be allowed to file a second round of dispositive motions. The plaintiff filed a
`
`4
`
`Motion for Partial Summary Judgment, asking the court to rule on Count 2 of the Complaint and
`
`issue a judicial declaration that the 1980 Release is not subject to termination under 17 U.S.C. §
`
`203(a), because it is not a “grant of a transfer or license of copyright or of any right under a
`
`copyright.” (See Doc. No. 70.) The court granted that motion. See Everly v. Everly (“Everly II”),
`
`No. 3:17-cv-01440, 2020 WL 5642359, at *7 (M.D. Tenn. Sept. 22, 2020). Doing so did not
`
`actually resolve any dispositive issue in the case, but it did revolve Count 2.
`
`
`
`The defendants filed a Motion for Judgment as a Matter of Law, asking the court to hold
`
`that (1) the statute of limitations cannot operate to bar the defendants’ defenses to the plaintiff’s
`
`affirmative claims, even if it might, arguably, bar the defendants’ Counterclaim; and (2) the proper
`
`accrual date for their copyright termination claim is the effective date of the termination. (Doc.
`
`No. 69.) With regard to the latter claim, the defendants argued that, as “newfound claimants” to
`
`the copyright rights accruing after termination of the 1960 Grant, they should be permitted to
`
`“proceed without prejudice to what may have occurred during the original term.” (Doc. No. 69, at
`
`2.) The court understood the defendants’ argument to be that their ability to terminate the 1960
`
`Grant should not be time-barred, even if their claim that Phil is an author of the Composition is
`
`time-barred. The court denied the defendants’ motion in its entirety, holding that: (1) if the
`
`defendants’ authorship claim is time-barred, their defenses based on authorship, which mirror their
`
`affirmative claim, would also be time-barred; and (2) if the defendants’ claim that Phil Everly is a
`
`co-author is time-barred, then the defendants cannot show that they are the successors of an
`
`“author” and do not have the ability to terminate the 1960 Grant. See Everly II, 2020 WL 5642359,
`
`at *14. However, because the court merely denied summary judgment to the defendants, all of
`
`their claims technically remained pending.
`
`Case 3:17-cv-01440 Document 103 Filed 05/04/21 Page 4 of 30 PageID #: 2293
`
`

`

`The parties filed a Joint Pretrial Order identifying two “Contested Issues of Law” to be
`
`5
`
`
`
`
`resolved by a bench trial, but the issues they identify are actually the contested issues of fact to be
`
`resolved by the court as the trier of fact:
`
`A. Did Don Everly plainly and expressly repudiate Phil Everly’s status as a co-
`author of Cathy’s Clown more than three years before Defendants filed their
`counterclaim, or did Don simply demand that Phil relinquish public credit and
`songwriter royalties for Cathy’s Clown?
`
`B. If Don Everly did not plainly and expressly repudiate Phil Everly’s authorship
`claim more than three years before Defendants filed their counterclaim, is Phil a
`co-author of Cathy’s Clown?
`
`(Doc. No. 96, at 1–2.) Because the court answers the first question posed in A, above, in the
`
`affirmative, it need not reach the second question, and judgment in favor of the plaintiff on all
`
`claims will logically ensue, based on the legal conclusions the court has already reached in prior
`
`Memoranda entered in this case.
`
`II.
`
`
`
`LEGAL FRAMEWORK
`
`As the Sixth Circuit has explained, ownership in a copyright “vests initially in the author
`
`or authors of the work.” 17 U.S.C. § 201(a); Everly I, 958 F.3d at 449. The owner of a copyright
`
`has the “exclusive right” to authorize the use and exploitation of a copyrighted work, including the
`
`rights to reproduce, perform, display, and distribute copies of the copyrighted work and to “prepare
`
`derivative works based upon the copyrighted work.” 17 U.S.C. § 106. These ownership rights
`
`“may be transferred in whole or in part.” Id. § 201(d). Accordingly, in order to monetize a work,
`
`the author “commonly sells his rights to publishers who offer royalties in exchange for their
`
`services in producing and marketing the author’s work.” Everly I, 958 F.3d at 449 (quoting Harper
`
`& Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 547 (1985)).
`
`
`
`Authorship of a work, however, imparts additional rights under copyright law “unaffected
`
`by the transfer of ownership.” Id. Of particular relevance here is that authors possess a “termination
`
`Case 3:17-cv-01440 Document 103 Filed 05/04/21 Page 5 of 30 PageID #: 2294
`
`

`

`
`right,” which allows them to terminate, after a statutorily defined period of time, “the exclusive or
`
`6
`
`nonexclusive grant of a transfer or license of copyright or of any right under a copyright.” 17
`
`U.S.C. § 203(a) (providing the right to terminate post-1978 grants between thirty-five and forty
`
`years after the grant); see id. § 304(c)(3) (providing the right to terminate grants “executed before
`
`January 1, 1978” “at any time during a period of five years beginning at the end of fifty-six years
`
`from the date copyright was originally secured, or beginning on January 1, 1978, whichever is
`
`later”). Importantly, unlike other copyright interests, “termination rights cannot be transferred.”
`
`Everly I, 958 F.3d at 450 (citing 17 U.S.C. § 203(a)(5) (termination “may be effected
`
`notwithstanding any agreement to the contrary, including an agreement to make a will or make
`
`any future grant”); id. § 304(c)(5) (same)).
`
`
`
`Copyright claims are subject to a three-year statute of limitations. See 17 U.S.C. § 507(b)
`
`(“No civil action shall be maintained under the provisions of this title unless it is commenced
`
`within three years after the claim accrued.”). A copyright infringement claim accrues, and the
`
`limitations period begins to run, with each new “infringing act.” Roger Miller Music, Inc. v.
`
`Sony/ATV Publ’g, LLC, 477 F.3d 383, 390 (6th Cir. 2007) (quoting Ritchie v. Williams, 395 F.3d
`
`288 n.5 (6th Cir. 2005)). A copyright ownership claim, however, “accrues only once, and if an
`
`action is not brought within three years of accrual, it is forever barred.” Id. (quoting Zuill v.
`
`Shanahan, 80 F.3d 1366, 1369 (9th Cir. 1996)). An ownership claim accrues, and “[t]the statutory
`
`period for any action to establish ownership begins to run[,] whenever there is a ‘plain and express
`
`repudiation’ of ownership by one party as against the other.” Everly I, 958 F.3d at 450 (quoting
`
`Ritchie, 395 F.3d at 288 n.5).
`
`
`
`In Everly I, the Sixth Circuit acknowledged that ownership and authorship claims, while
`
`not identical, are similar, and it held that the “express repudiation” test also applies to a claim
`
`Case 3:17-cv-01440 Document 103 Filed 05/04/21 Page 6 of 30 PageID #: 2295
`
`

`

`
`related to authorship. Id. at 452. To be clear, “an authorship claim will not accrue until the putative
`
`7
`
`author’s status as an author is expressly repudiated; actions repudiating ownership are irrelevant
`
`to begin the statute of limitations for an authorship claim because repudiation of ownership is not
`
`adverse to the author’s claim as such.” Id. at 453.
`
`
`
`There are several means by which an “express repudiation” may occur:
`
`The party claiming sole authorship can repudiate the plaintiff’s authorship (1)
`privately in direct communication with the plaintiff; (2) publicly by asserting sole
`authorship to the world and the plaintiff, including the listed credit on the published
`work; or (3) implicitly by receiving remuneration for the work to which the plaintiff
`is entitled. Of course, to repudiate the plaintiff’s claims under the latter two
`theories, the receipt of money and credit must actually be adverse to the plaintiff’s
`authorship status. . . .
`
`Id. (internal citations omitted). “Regardless of whether repudiation of authorship is made privately,
`
`publicly or implicitly, it must come from someone asserting authorship of the work, not from a
`
`third party.” Id. This requirement stems from the inalienable nature of authorship. Id. at 454. At
`
`the same time, the statements and conduct of third parties may “serve as circumstantial evidence
`
`that another putative author has expressly repudiated the plaintiff’s rights.” Id.
`
`III.
`
`FINDINGS OF FACT
`
`A.
`
`The Witnesses
`
`
`
`By agreement, the parties took plaintiff Don Everly’s deposition for proof in March 2018
`
`and, in deference to his health and advanced age, rather than having him testify in person at the
`
`trial, played the entirety of his videotaped deposition, edited only to remove attorney colloquy and
`
`objections. In addition, the complete transcript of his deposition was entered into evidence as
`
`Plaintiff’s Exhibit 70. Witness Joey Paige, a California resident, also testified by video deposition.
`
`Although defendants Jason Everly and Patti Everly were present at trial and testified live during
`
`the defense case, the plaintiff played portions of Jason Everly’s videotaped deposition and read
`
`into evidence excerpts from Patti Everly’s deposition, which was not videotaped, during his case
`
`Case 3:17-cv-01440 Document 103 Filed 05/04/21 Page 7 of 30 PageID #: 2296
`
`

`

`
`in chief. The plaintiff also entered all three of the transcripts for those depositions into evidence.
`
`8
`
`(Pl.’s Exs. 71 (Paige Dep.), 72 (Jason Everly Dep.), 73 (Patti Everly Dep.).) The only witnesses
`
`called to testify in person by the plaintiff were Lewis Anderson, who owns and operates
`
`Legacyworks, LLC, and Francis J. Del Casino, a Nashville entertainment lawyer. In addition to
`
`the live testimony of Jason and Patti, the defendants called Teri Brown as a live witness and played
`
`into the record excerpts of the videotaped deposition of Jacqueline (“Jackie”) Everly, Jason’s
`
`mother and Phil’s first wife.
`
`
`
`No official transcript of the bench trial has been prepared, and the court has primarily relied
`
`on its own notes and memory in reaching the findings of fact herein. However, when appropriate,
`
`the court has provided citations to the deposition transcripts when quoting direct testimony for the
`
`witnesses for whom deposition transcripts have been entered into evidence.4
`
`B.
`
`The Evidence
`
`
`
`Many of the events giving rise to the claims in this case took place a long time ago—some
`
`of them more than sixty years ago—and the court’s ability to develop a clear understanding of the
`
`facts has been significantly hampered by the passage of time, the erosion of memories, the
`
`disappearance of documents, and, most critically, the death of Phil Everly, the only person besides
`
`Don Everly who actually witnessed and participated in the disputed conversations and occurrences.
`
`
`
`The basic background facts, however, are largely undisputed. The Everly Brothers were a
`
`highly successful musical group that performed together from the late 1950s until 1973. They
`
`reunited in 1983 and continued performing together off and on through 2005. Phil died in 2014
`
`and is survived by his third wife, Patti Everly, and his sons, Jason and Chris.
`
`
`4 Even though the entire transcripts for the depositions of Don Everly, Jason Everly, Patti
`Everly, and Joey Page were entered into evidence, the court has relied upon only those portions
`that were actually read or played during the trial.
`
`Case 3:17-cv-01440 Document 103 Filed 05/04/21 Page 8 of 30 PageID #: 2297
`
`

`

`“Cathy’s Clown” was recorded and released in 1960. Don and Phil are both listed as
`
`9
`
`
`
`
`“authors” on the original copyright registration for the Composition. (Defs.’ Ex. 2.) Pursuant to
`
`the 1960 Grant, referenced above, Don and Phil assigned 100% of the worldwide copyright in
`
`“Cathy’s Clown” to Acuff-Rose, the assets of which were eventually acquired by Sony/ATV
`
`Music (“Sony”). Even after assigning the copyright in “Cathy’s Clown” to Acuff-Rose, Don and
`
`Phil retained the contractual right to the so-called “songwriter’s share” of royalties derived from
`
`the song.
`
`
`
`Don Everly was born in 1937 and was 81 years old during his 2018 video deposition, which
`
`was taken for proof and played into the record at trial. In 1960, he was 23 years old, and Phil was
`
`21. As Don explained, “We just kind of fell off the turnip truck. We were kids.” (Pl.’s Ex. 70,
`
`D. Everly Dep. 64.) He also testified that he never read the contracts “they” (meaning primarily
`
`Wesley Rose of Acuff-Rose) put in front of him. “[T]hey put contracts in front of me and I signed
`
`them. That’s it.” (Id. at 67.)
`
`
`
`There is no dispute that, from 1960 to June 1980, “Cathy’s Clown” was publicly credited
`
`on all phonorecords and privately designated in business records as having been co-written by Don
`
`and Phil, and they shared the Composition’s songwriter royalties. In a 1972 television interview
`
`on the David Frost Show, in response to questioning from Frost as to how many songs the brothers
`
`had written together and how many separately, Don responded that “Cathy’s Clown” was one of
`
`the songs they had written together. Phil launched into a story about how they had written it
`
`together, explaining that Don had written most of the song before he called Phil over to his house.
`
`At the time, the brothers lived across the street from each other in Nashville. Phil came over and
`
`listened to the song, which already had a melody and the chorus. Phil claimed that he added some
`
`verses, and the song was finished. (Defs.’ Ex. 5.) In 1961, BMI presented Don and Phil with an
`
`Case 3:17-cv-01440 Document 103 Filed 05/04/21 Page 9 of 30 PageID #: 2298
`
`

`

`
`award recognizing both of them as co-authors of “Cathy’s Clown.” (Defs.’ Ex. 4.)
`
`10
`
`
`
`Don now claims that he wrote the song alone and that the only reason he credited Phil with
`
`co-authorship of “Cathy’s Clown” and several other songs was because he was told by Wesley
`
`Rose that it would make the Everly Brothers more popular if the public believed that they wrote
`
`their songs together. Don testified emphatically that he wrote the entirety of “Cathy’s Clown”
`
`himself, lyrics and music, and that he was also responsible for the musical arrangement and
`
`production. He stated unequivocally that Phil did not contribute words or music to the
`
`Composition. Indeed, the court finds very credible Don’s detailed account about the origins of the
`
`song. He explained that it was inspired by the break-up “for no reason” from his high school
`
`girlfriend, Catherine Castle Craven Coe, and that the arrangement idea came from “sounds that
`
`[he] heard on the Grand Canyon Suite, a Disney film.” (D. Everly Dep. 12, 55; see also id. (“[T]he
`
`sound of mules going down the path, down the canyon, that sort of gave me the inspiration for the
`
`arrangements in the music.”).)5
`
`
`
`Although the brothers’ on-stage relationship appeared for the most part to be picture-
`
`perfect, the relationship soured substantially over time. It had deteriorated so much by 1973 that,
`
`according to Don, he sent Phil a letter giving him two weeks’ notice that he was quitting the duo.
`
`At their last show, two weeks later, Don was drunk and “messing up” the lyrics, and the situation
`
`was so tense that Phil ended up smashing his guitar and walking off stage. (D. Everly Dep. 73–
`
`74.) Except for the 1980 telephone call, Phil and Don basically did not speak again for the next ten
`
`years.
`
`
`5 In the 1984 biography of the Everly Brothers, entitled The Everly Brothers: Walk Right
`Back, Don is also quoted as explaining that the Composition “had that walking thing with the
`drums which hadn’t been used in pop music before. That came from the old Philip Morris
`commercial here in the States and I always liked it.” (See Def.’s Ex. 7.)
`
`Case 3:17-cv-01440 Document 103 Filed 05/04/21 Page 10 of 30 PageID #: 2299
`
`

`

`But they did have at least two direct communications. First, in 1975, Linda Ronstadt
`
`11
`
`
`
`
`recorded a song written by Phil Everly alone—“When Will I Be Loved”—that became a smash
`
`hit. Don knew that Phil was “making money from songwriting” as a result. (Id. at 19.) At some
`
`point after that release, but before June 1980, Don decided that it would be a good time to approach
`
`Phil about “set[ting] the record straight” about who actually wrote some of the songs they had
`
`recorded together. (Id. at 20.) Don testified that he sent a letter to Phil saying “you can give me
`
`my songs back.” (Id.) By this, he meant to “correct the record legally that [he was] the sole writer”
`
`on “Cathy’s Clown” and “some other songs.” (Id. at 17, 20.)
`
`
`
`As the defendants point out, there is no evidence in the record beyond Don’s testimony that
`
`Don actually wrote Phil a letter. He did not retain a copy of it, and Phil is no longer around to
`
`verify whether he received such a letter. None of Phil’s family or friends who testified at the trial
`
`recalls hearing him discuss receiving such a letter, and no such letter was located among Phil’s
`
`possessions after his death. The court nonetheless finds Don’s testimony regarding the letter to be
`
`credible, particularly in light of his testimony that he had also sent Phil a letter to terminate their
`
`singing partnership in 1973 and the fact that they were not on cordial terms and lived across the
`
`country from each other during this timeframe, with Don in Tennessee and Phil in California. The
`
`precise wording of the letter and the date on which it was sent, however, are not clear.
`
`
`
`Regarding the second communication, the evidence establishes that Don followed up the
`
`letter with a telephone call to Phil sometime during the first half of 1980. Don, who conceded that
`
`he would “sometimes” during this period get “drunk and stoned” and “angry at Phil,” does not
`
`recall this conversation. (Id. at 78.) In his deposition, Don testified that the letter was his only
`
`communication with Phil about getting Phil to “sign over” his share in certain songs to Don. (Id.
`
`at 41.) In a Declaration prepared on July 20, 2018 and admitted as an exhibit at the bench trial,
`
`Case 3:17-cv-01440 Document 103 Filed 05/04/21 Page 11 of 30 PageID #: 2300
`
`

`

`
`Don stated: “I’ve been told that a number of witnesses in this matter have testified that I called
`
`12
`
`Phil to harass him to get my songs back. I don’t have any recollection of a phone call like that, but
`
`if I did call him, it was likely a follow up to the letter I had sent.” (D. Everly Decl. ¶ 13, Pl.’s Ex.
`
`1.)
`
`
`
`Several witnesses testified that this telephone call occurred and that it had a significant
`
`effect on Phil, including Joey Paige, Jason Everly, Teri Brown, and Jackie Everly. Joey Paige was
`
`formerly a bass player for the Everly Brothers and remained close friends with Phil even after the
`
`duo broke up, and he and Phil lived in California and Don lived in Tennessee. Asked about the
`
`relationship between the brothers that he observed while traveling with the band and spending a
`
`lot of time with both Don and Phil, Paige described it as “strange. Sometimes it was good,
`
`sometimes it was bad. Other times it was intolerable.” (J. Paige Dep. 10.) Paige frequently found
`
`himself in the middle, mediating between the brothers, going so far as to select which outfits they
`
`would wear on stage and which songs they would perform, to try to minimize conflict. (Id.) There
`
`was both a “lot of conflict” and a “lot of love.” (Id. at 11.) According to Paige, Don was the
`
`“dominant” party in the relationship, while Phil was always in the role of “little brother.” (Id.)
`
`
`
`Paige testified that he was hanging out at Phil’s house one day in 1980 when Phil received
`
`a telephone call from Don. He saw Phil pick up the phone and say “Hi Don,” and from there the
`
`call became “violent verbally.” (Id. at 12.) Paige heard Phil say something like, “how can you do
`
`this to me, you know I wrote half that song.” (Id. at 13.) This was at the beginning of the
`
`conversation. The call lasted about ten minutes, with Phil becoming increasingly agitated and
`
`angry. After the call ended, Phil was “pissed,” “pacing back and forth in the living room,” and
`
`saying, “I can’t believe this is going on.” (Id.) Phil told Paige, “I just told him I’m going to give it
`
`back to him,” referring to “Cathy’s Clown.” (Id. at 13–14.) According to Paige, Phil said “he wrote
`
`Case 3:17-cv-01440 Document 103 Filed 05/04/21 Page 12 of 30 PageID #: 2301
`
`

`

`
`half of it and Don wanted it back.” (Id. at 14.) Paige told Phil, “don’t do this in haste . . . . If you
`
`13
`
`believe you wrote half that song, then you have the rights to half that song.” (Id.)
`
`
`
`No other person witnessed that telephone conversation directly, but Phil’s son, Jason
`
`Everly, who was 14 years old at the time, came home from school one day to find Joey Paige and
`
`his father at the house and his father very upset and angry. Jason understood only that his father
`
`and uncle had talked on the phone, which was unusual at that point, since they were not on speaking
`
`terms and really had not been on good terms since the break-up of the duo in 1973. Jason also was
`
`aware that, after the telephone call, his father had “signed paperwork saying, ‘I absolve myself of
`
`the writership.’” (Pl.’s Ex. 72, Jason Everly Dep. 28.)
`
`
`
`Similarly, Teri Brown, a witness with long ties to the entertainment business and the Everly
`
`Brothers and who was a close friend of Phil’s in 1980, testified that she arrived at Phil’s house
`
`later that same day in 1980, as Paige was leaving. Upon her arrival, she found Phil visibly shaken
`
`and angry; she had never seen him that upset before. He told her that he had spoken with Don on
`
`the phone and that “he had given up his share of writing in the copyright of ‘Cathy’s Clown.’”
`
`Brown claimed that Phil did not want to discuss the matter further at that time but later explained
`
`to her that he just “had to keep the peace.” Jackie Everly, who was not there, also testified that Phil
`
`told her about a telephone call with Don, which was unusual in itself, and that “his brother had
`
`asked him for the rights to ‘Cathy’s Clown’ and that he had agreed.”
`
`
`
`The court acknowledges that some of the testimony about what Phil told witnesses or what
`
`they overheard him say may constitute hearsay, but neither party objected to its introduction.6
`
`Regardless, the court finds the testimony relevant primarily to establish that a telephone call
`
`
`6 Because no party objected, the court had no reason to determine whether the statements
`fell within one of the exceptions identified in Rules 803, 804, or 807.
`
`Case 3:17-cv-01440 Document 103 Filed 05/04/21 Page 13 of 30 PageID #: 2302
`
`

`

`
`between Don and Phil actually took place and as circumstantial evidence regarding what Don said
`
`14
`
`to Phil to provoke such a reaction. Based on Don’s testimony about the letter and his intentions, it
`
`is clear to the court that, during this telephone conversation, Don relayed to Phil his belief that Phil
`
`was not a co-author of “Cathy’s Clown” and several other songs and should not continue to take
`
`credit for being a co-author, and Don demanded that Phil “take his name off” the songs—that is,
`
`legally acknowledge that he did not co-write “Cathy’s Clown” and the other contested songs.
`
`Don’s testimony establishes that this was the gist of his communication with Phil: “My songs were
`
`mine again. I had written them and that was it.” (D. Everly Dep. 20.) Phil objected and, as his
`
`family members testified, continued to grumble about it for the next twenty or thirty years, but he
`
`ultimately acquiesced.
`
`
`
`This conclusion—regarding both what Don said to Phil and Phil’s acquiescence, is further
`
`supported by the undisputed fact that, on June 10 and 11, 1980, Phil signed five documents, each
`
`titled “Release and Assignment,” pertaining to “Cathy’s Clown” and sixteen other musical
`
`compositions (the “Released Songs”) whose original copyright registrations indicated that they
`
`had been written by both Don and Phil. (Pl.’s Ex. 2; Defs.’ Ex. 6.)7 Phil’s signature on each
`
`document was notarized by a notary based in Los Angeles County, California.8
`
`
`
`The 1980 Release pertaining to “Cathy’s Clown” acknowledges that Don and Phil had
`
`entered into an agreement with Acuff-Rose, as publisher, transferring certain rights relating to the
`
`
`7 To be clear, this lawsuit now concerns only “Cathy’s Clown.” The plaintiff’s Exhibit 2
`includes all five of the 1980 Releases. Defendants’ Exhibit 6 consists of just the 1980 Release
`relating to “Cathy’s Clown.”
`8 Don had no recollection regarding the preparation of the 1980 Releases, though he
`thought that Acuff-Rose had probably prepared them and sent them to Phil. (D. Everly Dep. 20.)
`Jason Everly testified to his belief that “Donald’s person” prepared the documents and that Phil
`himself would never have done so. (Jason Everly Dep. 29.) He also claimed that his father told
`him many times over the years that he had told Don, “Screw you. Send me the goddamn paperwork
`and I’ll sign it.” (Id. at 30.)
`
`Case 3:17-cv-01440 Document 103 Filed 05/04/21 Page 14 of 30 PageID #: 2303
`
`

`

`
`Composition to Acuff-Rose and that said agreement “listed both Phil Everly and Don Everly as
`
`15
`
`composers of said compositions.” (Defs.’ Ex. 6.) Notwithstanding that prior representation,
`
`according to the 1980 Release, “Phil Everly desires to release, and transfer, to the said Don Everly
`
`all of his rights, interests and claim in and to [‘Cathy’s Clown’], including rights to royalties and
`
`his claim as co-composer, effective June 1, 1980.” (Id. (emphasis added).) Accordingly, pursuant
`
`to the Release, Phil did
`
`transfer, release, assign and set over unto Don Everly all of his rights, titles,
`interests and claim to the musical compositions “CATHY’S CLOWN” [and two
`other works], the copyrights of which were obtained in 1960 by Acuff-Rose
`Publications, and which are still owned by them. This transfer and release . . .
`includes not only the said Phil Everly’s right to royalties and other income arising
`out of the said compositions from and after the effective date, but also every claim
`of every nature by him as to the compositions [sic] of said songs.
`
`(Id. (emphasis a