RECOMMENDED FOR PUBLICATION
`Pursuant to Sixth Circuit I.O.P. 32.1(b)
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`File Name: 23a0026p.06
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`UNITED STATES COURT OF APPEALS
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`FOR THE SIXTH CIRCUIT
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`
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`
`
`
`No. 21-5530
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`ADELAIDA GARZA, Personal Representative for the
`Estate of Isaac Donald Everly,
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`Plaintiff-Appellee,
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`
`
`
`
`
`
`v.
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`PATRICE Y. EVERLY; PHILLIP J. EVERLY; CHRISTOPHER
`EVERLY; PHILLIP EVERLY FAMILY TRUST; EVERLY AND
`SONS MUSIC (BMI),
`
`Defendants-Appellants.
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`
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`┐
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`┘
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`Appeal from the United States District Court for the Middle District of Tennessee at Nashville.
`No. 3:17-cv-01440—Aleta Arthur Trauger, District Judge.
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`Decided and Filed: February 10, 2023
`
`Before: GUY, BUSH, and MURPHY, Circuit Judges.
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`_________________
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`COUNSEL
`
`ON BRIEF: Jay S. Bowen, Jacob Clabo, SHACKELFORD BOWEN MCKINLEY &
`NORTON, LLP, Nashville, Tennessee, for Appellants. Philip M. Kirkpatrick, Joshua Counts
`Cumby, ADAMS AND REESE LLP, Nashville, Tennessee, for Appellee.
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`BUSH, J., delivered the opinion of the court in which GUY and MURPHY, JJ., joined.
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`MURPHY, J. (pp. 12–15), delivered a separate concurring opinion.
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`
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`

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`No. 21-5530
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`Garza v. Everly
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`Page 2
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`
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`_________________
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`OPINION
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`_________________
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`JOHN K. BUSH, Circuit Judge. “Phil and Don,” once again, are “knocking at the
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`door.”1 See Everly v. Everly, 958 F.3d 442 (6th Cir. 2020). The Everly Brothers are a famous
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`musical duo known for many hits. Cathy’s Clown is the one at issue in this appeal. Older
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`brother Isaac Donald Everly (“Don”) and younger brother Philip Everly (“Phil”) are now both
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`deceased, but their estates2 contest authorship over Cathy’s Clown. Don’s estate claims full
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`authorship, while Phil’s estate claims co-authorship.
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`While both brothers may have co-authored the lyrics and tune as a matter of fact, Don’s
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`estate alleges that Phil is no longer an author as a matter of copyright law. That is because Don
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`allegedly expressly repudiated Phil’s authorship, triggering a three-year window for Phil to re-
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`assert authorship under the Copyright Act. On November 8, 2017, Don sued Phil’s estate for a
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`declaratory judgment that Don is sole author of Cathy’s Clown and should receive the benefits
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`therefrom. The district court granted Don summary judgment, and we reversed because there
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`was a genuine issue of material fact as to whether Don repudiated Phil’s authorship. After a
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`bench trial, the district court found that Don did repudiate Phil’s authorship and Phil failed to re-
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`assert that he was an author. The district court further determined that because Phil failed to re-
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`assert that he was an author, he was time-barred from asserting he was a co-author as a defense
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`to Don’s suit. Phil’s estate contests this finding and, in addition, asserts that the three-year
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`statute of limitations applies only to authorship claims, not defenses, and so it should be allowed
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`to argue that Phil was an author to defend against Don’s suit. We hold that Don’s estate may
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`rely on the statute of limitations here. Because the district court did not clearly err in finding that
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`Phil failed to exercise his rights after Don repudiated his authorship, we AFFIRM.
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`
`1PAUL MCCARTNEY & WINGS, Let ‘Em In, on WINGS AT THE SPEED OF SOUND (Capitol Records 1976).
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`2The term “estates” is used generally to refer to heirs, statutory successors, and other successors of right to
`any rights Don or Phil may have had in Cathy’s Clown.
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`

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`No. 21-5530
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`Garza v. Everly
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`Page 3
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`I.
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`We briefly recite the history behind this case, as further detail can be found in our earlier
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`opinion, Everly v. Everly, 958 F.3d 442, 445–47 (6th Cir. 2020). Although some facts are
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`muddied given the long history of this case, we will rely on the trial court, which conducted a
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`two-day bench trial on April 27 and 28, 2021. See Everly v. Everly, 536 F. Supp. 3d 276 (M.D.
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`Tenn. 2021).
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`The year was 1960. Cathy’s Clown was recorded, released, and copyrighted—eventually
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`becoming one of the brothers’ most famous songs. Everly, 958 F.3d at 445. The copyrights
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`listed Phil and Don as authors, and both brothers were credited as co-authors and received
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`royalties. Although the brothers shared credit for many years, over time, their relationship
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`soured. Don, around 1980, began pressuring Phil to take his name off the song.3 The district
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`court believed Don’s testimony that he sent Phil a letter saying “you can give me my songs
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`back,” which referred to Cathy’s Clown and other songs. It also concluded based on witness
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`testimony that Don placed a telephone call to Phil, during which Phil appears to have implied he
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`was a co-author, but nonetheless allowed Don to take full authorship. On June 10 and 11, 1980,
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`Phil signed five documents titled “Release and Assignment,” all notarized, related to Cathy’s
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`Clown and sixteen other works. The release related to Cathy’s Clown states, “Phil Everly desires
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`to release, and transfer, to the said Don Everly all of his rights, interests and claim in and to
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`[‘Cathy’s Clown’], including rights to royalties and his claim as co-composer, effective June 1,
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`1980.” Memorandum Opinion, R.103, at 15 (citation omitted) (emphasis added by district
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`court).
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`The district court viewed this release as a signal that Phil acquiesced to Don’s repudiation
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`of Phil’s authorship. Further, an email introduced at trial from Lewis Anderson, owner of a
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`company that helps songwriters such as Phil recapture copyright ownership, indicates Phil
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`acknowledged he made “an agreement with Don to remove himself as writer of ‘Cathy’s
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`Clown.’” The district court recognized some contradictory evidence of Phil’s factual authorship,
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`particularly a 1984 television interview (which postdates the 1980 release) during which Don
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`3Don claimed in this litigation that he had described Cathy’s Clown as authored by both Everly brothers to
`maintain the image that they wrote their songs together.
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`

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`No. 21-5530
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`Garza v. Everly
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`Page 4
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`
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`explains the creation of Cathy’s Clown: “I started a song, called Phil over, he came over and we
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`worked—we hashed it out, and went into the studio.” Memorandum Opinion, R.103, at 19–20.
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`But the district court determined that “worked” and “hashed it out” did not establish Phil’s
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`contributions to writing lyrics or composition. In fact, Don asserted vehemently at trial that he
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`alone wrote the entire song Cathy’s Clown, testimony which the district court found “very
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`credible.”
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`All in all, the district court found that, according to a preponderance of the evidence,
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`“Don plainly and expressly repudiated Phil’s authorship” of Cathy’s Clown by letter and
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`telephone call in 1980, culminating in the 1980 “Release and Assignment.” This express
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`repudiation triggered a three-year window for Phil to make an authorship claim under the
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`Copyright Act—which Phil undisputedly failed to do.
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`The district court also rejected Phil’s estate’s argument that the three-year statute of
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`limitations should not apply to the defense that Phil is co-author. While it is true that statutes of
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`limitations do not usually apply to defenses, the district court viewed Phil’s authorship claim as
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`“amount[ing] to” an affirmative claim. Id. at 22. It viewed Phil’s estate as “skirting” the statute
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`of limitations by bringing a claim in the form of a defense. Id. at 25. Further, the district court
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`noted that it was Phil’s estate which “sought to topple the status quo” by attempting to terminate
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`the 1980 release. Id. at 27. Because Phil’s authorship claim was time-barred, the district court
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`entered judgment for Don’s estate. Id. at 29–30.
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`II.
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`On appeal from a judgment entered after a bench trial, “we review the district court’s
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`findings of fact for clear error and its conclusions of law de novo.” Kehoe Component Sales Inc.
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`v. Best Lighting Prods., 796 F.3d 576, 585 (6th Cir. 2015) (quoting Beaven v. U.S. Dep’t of Just.,
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`622 F.3d 540, 547 (6th Cir. 2010)). Phil’s estate raises three general arguments on appeal: (1) it
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`contests the district court’s application of certain aspects of the Copyright Act’s scheme for
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`handling authorship claims; (2) it argues the district court’s finding of express repudiation was
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`error; and (3) it disagrees with the district court’s holding that the statute of limitations of three
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`years for a copyright claim bars an authorship “defense.” We consider these arguments in turn.
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`

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`No. 21-5530
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`Garza v. Everly
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`Page 5
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`
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`III.
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`A copyright initially vests in the author or authors of a work. 17 U.S.C. § 201(a).
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`Authors can transfer ownership of a copyright to, say, a publisher, which would grant said
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`publisher exclusive rights to reproduce and distribute the work. Everly, 958 F.3d at 449.
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`Authors, even if they transfer ownership, retain some rights, including a termination right, which
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`allows authors to regain copyright ownership down the line. Id. at 449–450. Termination rights
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`cannot be transferred. Id. at 450.
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`A person must bring a claim under the Copyright Act “within three years after the claim
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`accrued.” 17 U.S.C. § 507(b). This three-year statute of limitations begins to run between co-
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`authors when “there is a ‘plain and express repudiation’ . . . by one party as against the other.”
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`Everly, 958 F.3d at 450 (quoting Ritchie v. Williams, 395 F.3d 283, 288 n.5 (6th Cir. 2005)).
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`Such a claim “accrues only once,” at the time of repudiation. Id. at 450 (quoting Roger Miller
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`Music v. Sony/ATV Publ’g, 477 F.3d 383, 390 (6th Cir. 2007)). Repudiation must come from
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`someone claiming authorship, not a third party. Id. at 453. “Allowing authors to sleep on their
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`rights even after they have been repudiated would inject instability into an area of copyright law
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`that calls out for certainty.” Id.
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`
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`Phil’s estate makes two arguments to avoid application of this scheme. First, it asserts
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`that because termination rights are inalienable, the district court’s holding that Phil is not a co-
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`author violates the Copyright Act by alienating his termination rights. Citing Nimmer, Phil’s
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`estate notes that “authors and their successors may terminate copyright assignments in spite of
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`any contractual device that purports to divest them of the right.” 3 Melville B. Nimmer and
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`David Nimmer, NIMMER ON COPYRIGHT § 11.07. Therefore, the district court created a “work-
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`around” to allow divestiture of termination rights.
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`
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`We disagree. The district court nowhere held that authors can divest their copyright
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`termination rights by contract. Rather, the statute of limitations plainly bars claims three years
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`after they accrue, so adhering to that language gives effect to the statutory framework, rather
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`than nullifying it. Authors who fail to bring a timely authorship claim no longer have
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`termination rights to alienate.
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`No. 21-5530
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`Garza v. Everly
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`Page 6
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`Phil’s estate also argues that the statute of limitations should start running only after a
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`formal termination notice is sent, which is when it believes Phil’s authorship claims first had to
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`be asserted. But under our case law, the trigger for starting the clock on raising an authorship
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`claim is a plain and express repudiation, Ritchie, 395 F.3d at 288 n.5, which can occur even if
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`there is no formal termination notice. Indeed, we have noted repudiation is akin to adverse
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`possession, Everly, 958 F.3d at 451; a landowner need not be served with a document for the
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`adverse possession clock to run.
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`
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`Nor are we sympathetic that some members of Phil’s estate, including descendants of
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`Phil, are “newfound claimants.” Phil’s descendants cannot inherit authorship rights beyond what
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`Phil himself possessed. Put another way, the statute of limitations does not refresh itself simply
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`because Phil passed away and his descendants want to bring a belated authorship claim.
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`
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`With those issues resolved, we now turn to the statutory scheme for authorship disputes.
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`IV.
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`We examine two issues: (1) whether the district court clearly erred in finding that Don
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`repudiated Phil’s authorship and Phil did not object to that repudiation within three years, and
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`(2) whether Don’s estate may rely on the three-year statute of limitations to bar Phil’s estate’s
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`assertion of co-authorship.
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`A. The Repudiation
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`
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`The key question is whether the district court committed clear error in finding that Don
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`repudiated Phil’s authorship around the year 1980. It is undisputed Phil did not bring a timely
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`claim to maintain co-author status after this time. Therefore, if Don repudiated Phil’s authorship,
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`Phil’s estate is barred from bringing an affirmative authorship claim. We hold that the district
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`court did not clearly err in finding that Don repudiated Phil’s authorship.
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`It is undisputed that in 1980, Phil signed five notarized documents titled “Release and
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`Assignment” that relinquished “his claim as co-composer.” Memorandum Opinion, R.103, at
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`14–15. Further, the district court found that Don, by letter and telephone call, told Phil that Don
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`was sole author and demanded Phil “take his name off” Cathy’s Clown. Id. at 14. Terri Brown,
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`

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`No. 21-5530
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`Garza v. Everly
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`Page 7
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` a
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` witness with ties to the entertainment industry and a close friend of Phil’s, testified that Phil
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`told her he had “given up his share of writing” in Cathy’s Clown. Id. at 13. Joey Paige, former
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`bass player for the Everly Brothers and close friend of Phil’s, testified that he was present when
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`Phil received the phone call from Don and that Phil said he would give the song back to Don. Id.
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`at 12. The district court noted, too, that after these events in 1980, credit for the song accrued to
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`Don only, and Phil treated the song as Don’s. In fact, Phil made efforts to terminate copyright
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`grants for other lucrative songs, but not for Cathy’s Clown. Phil told Lewis Anderson, owner of
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`a company that helps songwriters recapture copyright ownership, that he had “made an
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`agreement with Don to remove himself as writer of ‘Cathy’s Clown.’” Id. at 16–17.
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`A termination notice was filed for Cathy’s Clown only by Phil’s descendants and only after his
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`passing.
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`
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`The district court also considered contrary evidence, including the testimony of Patti
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`Everly, who was married to Phil until his death. She testified to the effect that Phil had recently
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`been contemplating recapturing the copyright and that termination notices may have been written
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`but not done correctly. The district court did not find this testimony credible given other
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`evidence in the record and the fact that Phil had successfully filed termination notices for
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`nineteen songs through the same person allegedly charged with terminating the rights of Cathy’s
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`Clown. Lewis Anderson could not find any evidence of a notice of termination for Cathy’s
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`Clown. And although Phil’s estate portrays Don as a “bully” and points to Phil’s distress
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`surrounding losing the rights to Cathy’s Clown, Phil may have had legitimate reasons for giving
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`up authorship, including keeping family peace and making up for Don’s generosity in crediting
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`Phil for other songs of which Phil was not an author.
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`
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`Altogether, the district court found, “by a preponderance of the evidence, that Don
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`plainly and expressly repudiated Phil’s authorship of ‘Cathy’s Clown’ by letter and then by
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`telephone call in 1980 and that the 1980 Release was intended to be a memorialization of that
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`repudiation.” Id. at 21. That finding is not clearly erroneous. Therefore, Phil’s estate is barred
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`from bringing an affirmative co-authorship claim.
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`No. 21-5530
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`Garza v. Everly
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`Page 8
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`B. Applicability of Statutes of Limitations to Defenses
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`Even if Phil’s estate is barred from raising an affirmative co-authorship claim, may it
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`raise co-authorship as a defense? It originally raised authorship as a counterclaim, not a defense.
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`Don then raised the statute of limitations as an affirmative defense to the counterclaim. In a
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`motion for reconsideration before the district court, Phil’s estate essentially reframed the
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`counterclaim into a defense, making the argument that the statute of limitations could not be used
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`as a “sword” against the defense of co-authorship. Everly, 958 F.3d at 448. The first time this
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`case reached our court, we did not reach this issue because it had not been argued until the
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`motion-for-reconsideration stage. Id. at 449. However, the district court reached this issue on
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`remand, and the issue is fully briefed. Further, this defense has the same content as the original
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`counterclaim—that Phil is co-author—and therefore allowing it to be raised would not result in
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`unfair surprise. See Rogers v. IRS, 822 F.3d 854, 856 (6th Cir. 2016) (quoting Lauderdale v.
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`Wells Fargo Home Mortg., 552 F. App’x 566, 573 (6th Cir. 2014)) (allowing defense to be
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`raised late if it does not surprise or prejudice the plaintiff). We therefore address it now.
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`
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`A principal justification for statutes of limitations is to prevent surprises from the revival
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`of dormant claims after witnesses have passed and evidence has been lost. Ord. of R.R.
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`Telegraphers v. Ry. Express Agency, Inc., 321 U.S. 342, 348–49 (1944); see also United States v.
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`W. Pac. R.R. Co., 352 U.S. 59, 72 (1956) (“The purpose of such statutes is to keep stale litigation
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`out of the courts.”). Many other justifications for statutes of limitations have been proffered.
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`See Tyler T. Ochoa & Andrew Wistrich, The Puzzling Purposes of Statutes of Limitation,
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`28 PAC. L.J. 453, 453 (1997) (e.g., reducing litigation, promoting diligence, and avoiding
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`retrospective application of new standards). The federal limitations period for copyright claims
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`serves two special purposes: (1) to render uniform and certain the time frame for copyright
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`claims and (2) to prevent forum shopping resulting from disuniform state limitations periods.
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`Petrella v. MGM, 572 U.S. 663, 670 (2014).
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`
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`Generally, however, statutes of limitations do not apply to defenses. See W. Pac. R.R.,
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`352 U.S. at 72; Est. of Hogarth v. Edgar Rice Burroughs, Inc., 342 F.3d 149, 163–64 (2d Cir.
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`2003) (quoting Luckenbach S.S. Co. v. United States, 312 F.2d 545, 548–51, 552 n.3 (2d Cir.
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`1963)) (“The law is well settled that limitations do not normally run against a defense.”). That is,
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`No. 21-5530
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`Garza v. Everly
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`Page 9
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`
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`at least in part, because the ability to raise a defense is not expected to stir up litigation about old
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`issues. See W. Pac. R.R., 352 U.S. at 72. In addition, if defenses could expire, a potential
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`plaintiff could wait until defenses are time barred and then “pounce” on the defendant. City of
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`St. Paul v. Evans, 344 F.3d 1029, 1034 (9th Cir. 2003).
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`
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`In this vein, Phil’s estate relies on Estate of Hogarth, in which the Second Circuit held
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`that a defendant could raise a work-for-hire defense in the copyright context even if it would be
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`barred as a claim. 342 F.3d at 163. The court reasoned, “A defendant who is not seeking any
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`affirmative relief and who asserts a defense only to defeat a plaintiff's claim is not barred by a
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`statute of limitations. . . . Potential defendants are not required to seek at the earliest opportunity
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`a declaration that a defense to a claim not yet brought is valid.” Id. at 163–64 (citations omitted).
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`However, it is important that a defendant only seek to defend himself, rather than use a defense
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`as a work-around to bring a time-barred claim. See Evans, 344 F.3d at 1034–35 (“It is important
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`that the party asserting the defense is not, simultaneously or in parallel litigation, seeking
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`affirmative recovery on an identical claim. Thus, whether affirmative defenses are exempt from
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`statutes of limitations largely hinges on a realistic assessment of the parties’ litigation posture.”).
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`
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`In Evans, a plaintiff city sought to void a settlement after the statute of limitations had
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`passed on its claims. Id. at 1033. The district court allowed identical affirmative defenses to be
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`raised in response to counterclaims. Id. On appeal, the Ninth Circuit reversed, emphasizing the
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`importance of “a realistic assessment of the parties’ litigation posture.” Id. at 1035. A party
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`who, in raising a defense, is “seeking affirmative recovery” or using “subterfuge to characterize a
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`claim as a defense in order to avoid a temporal bar,” id. (citing Mobil Oil Corp. v. Dep’t of
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`Energy, 728 F.2d 1477, 1488 (Temp. Emer. Ct. App. 1983)), is an “aggressor” and thus is not
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`merely defending itself, id. To hold otherwise, the court explained, would allow “jurisdictional
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`jujitsu” to be used to “evade” a statute of limitations. Id. at 1031. We agree with the Ninth
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`Circuit’s analysis and adopt this rule for the limited situation where a defendant is seeking
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`affirmative relief packaged within a defense and is attempting to dodge a statute of limitations
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`that is an important part of the statutory framework.
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`
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`Is Phil’s estate seeking affirmative relief or merely trying to defend itself? It originally
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`raised co-authorship as a counterclaim. It sought a declaratory judgment that Phil is co-author
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`No. 21-5530
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`Garza v. Everly
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`Page 10
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`
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`and entitled to “one-half of the income earned from the exploitation of the Composition.”
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`Answer, Affirmative Defenses and Counterclaim, R.5, PageID 71. Ultimately, then, the estate is
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`asserting authorship and the financial benefits thereof.
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`It is hard to see how Phil’s estate is not seeking affirmative relief. As we have held, it
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`would not be able to bring suit over authorship as an affirmative claim. Yet it attempts to bring
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`the exact same claim as a defense to assert that Phil was co-author. We do not adopt a
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`formalistic approach that would allow Phil’s estate to relabel its assertions as a defense in order
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`to employ a “jurisdictional jujitsu” to evade a statute of limitations. See Evans, 344 F.3d at
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`1031. Here, the statutory scheme is intended to create certainty after three years, and the estate
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`may not avoid that outcome at this late stage.
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`We do not hold, however, that Phil’s estate may never raise Phil’s authorship as a
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`defense. For example, if Don’s estate were seeking damages for infringement, for defamation, or
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`the like, Phil’s estate perhaps could rely on Phil’s factual authorship of Cathy’s Clown, if proved,
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`to reduce its liability to the extent authorship is relevant. But here, Phil’s estate attempts to use a
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`defense to secure the benefits of authorship—despite its authorship claims being barred. See Est.
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`of Hogarth, 342 F.3d at 163 (quoting W. Pac. R.R., 352 U.S. at 72) (“A defendant who is not
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`seeking any affirmative relief and who asserts a defense only to defeat a plaintiff's claim is not
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`barred by a statute of limitations.”) (emphasis added). Therefore, Phil’s authorship can
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`conceivably be used as a defense in other contexts, but not in a legal contest over who owns the
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`rights to and profits from Cathy’s Clown—an issue that was settled by Don’s repudiation long
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`ago.
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`
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`Phil’s estate also disputes the district court’s finding that it was the party who “sought to
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`topple the status quo.” Appellants’ Br. at 37 (quoting Memorandum Opinion, R.103, at 27). We
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`agree it is not necessarily clear that it is Phil’s estate that attempted to disrupt the status quo. In
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`2011, Don filed termination notices to recapture the full rights and ownership of Cathy’s Clown.
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`Letter to Jay Bowen, R. 41-1, PageID 900–01. Therefore, if Phil factually co-authored Cathy’s
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`Clown, Don arguably intruded on that situation by attempting to recapture full rights and
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`ownership. But this point is moot because Phil’s estate is seeking affirmative relief that is barred
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`by the statutory framework.
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`No. 21-5530
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`Garza v. Everly
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`Page 11
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`Therefore, we conclude Phil’s estate is barred from claiming authorship as a defense in
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`this context.
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`V.
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`In sum, we hold that the district court did not clearly err in finding that Don repudiated
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`Phil’s authorship of the song Cathy’s Clown and that Phil did not respond to the repudiation by
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`asserting his authorship rights within the applicable statute-of-limitations period. Therefore, Phil
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`Everly’s heirs and successors are barred from claiming or exercising rights related to authorship
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`of the song Cathy’s Clown. We AFFIRM the judgment of the district court.
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`No. 21-5530
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`Garza v. Everly
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`Page 12
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`_________________
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`CONCURRENCE
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`_________________
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`MURPHY, Circuit Judge, concurring. The majority opinion cogently explains why we
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`must affirm the district court’s fact-bound conclusion that Don Everly plainly and expressly
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`repudiated Phil Everly’s co-authorship of Cathy’s Clown in 1980. Because our cases treat a
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`person’s status as a copyright author or owner as a “claim,” the district court’s conclusion of a
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`plain and express repudiation means that the Copyright Act’s three-year statute of limitations has
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`run on the “claim” by Phil’s estate that Phil co-authored Cathy’s Clown. See Everly v. Everly,
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`958 F.3d 442, 450–55 (6th Cir. 2020). I write to reaffirm my “doubt over whether our [plain-
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`and-express-repudiation] test is the right way to think about the start date for this statute of
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`limitations.” Id. at 460 (Murphy, J., concurring).
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`To summarize, our test has two problems. The statute’s text adopts an occurrence rule
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`that starts the limitations period on the date that the claim “accrued”—that is, the date that the
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`claim came into existence (whether or not a plaintiff knows of it). 17 U.S.C. § 507(b). But our
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`test follows a discovery rule that starts the limitations period on the date that a plaintiff should
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`have known that another author has repudiated the plaintiff’s authorship interest. See Everly,
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`958 F.3d at 460–63 (Murphy, J., concurring). Next, the statute’s text starts the limitations period
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`not just when anything accrues but when a claim accrues—that is, when the plaintiff has a
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`completed cause of action for relief whose elements have all been met. 17 U.S.C. § 507(b); see
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`Petrella v. Metro-Goldwyn-Mayer, Inc., 572 U.S. 663, 670 (2014). Our test treats a party’s
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`authorship or ownership as a “claim” even though it is merely one element of a claim for
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`copyright infringement (between a copyright owner and a third-party infringer) or an equitable
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`distribution of royalties (between co-owners). See Everly, 958 F.3d at 463–68 (Murphy, J.,
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`concurring).
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`In my mind, the new question in this second appeal (Does the Copyright Act’s statute of
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`limitations apply to a party’s “defense”?) further illuminates the oddity of our approach.
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`To answer this question, start with the text: “No civil action shall be maintained under the
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`No. 21-5530
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`Garza v. Everly
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`provisions of this title unless it is commenced within three years after the claim accrued.” 17
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`U.S.C. § 507(b). This language says nothing about barring a defendant’s “defense”; it covers a
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`plaintiff’s “claim.” The answer to the question whether the statute applies to a defense thus is an
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`unambiguous “no.” As the majority opinion notes, if a plaintiff sought damages from a
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`defendant for copyright infringement under 17 U.S.C. § 501(b), the defendant could assert a co-
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`ownership defense because co-owners cannot sue each other for infringement under our
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`precedent. See Severe Records, LLC v. Rich, 658 F.3d 571, 582 (6th Cir. 2011). So Phil might
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`at first appear to have the better of the argument when he says that he may raise his co-
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`authorship status as a “defense” to Don’s suit.
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`Yet Don’s suit adds a complexity that we must account for. He did not sue Phil’s estate
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`for royalties under an equitable “accounting” cause of action. See Everly, 958 F.3d at 467
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`(Murphy, J., concurring). Rather, he sued Phil’s estate for a declaration of rights under the
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`Declaratory Judgment Act. Compl., R.1, PageID 1. Don asked the court to “declare” that he
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`was entitled to 100% of the royalties from Cathy’s Clown and that the estate was entitled to
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`none. Id., PageID 2, 12–13. I read the copyright statute of limitations as using the word “claim”
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`as a term of art to refer to the “direct claim” that would arise between the parties outside the
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`declaratory-judgment context. Int’l Ass’n of Machinists & Aerospace Workers v. Tenn. Valley
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`Auth., 108 F.3d 658, 668 (6th Cir. 1997). As I said before, “a declaration is a remedy, not a
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`claim, and its main benefit is to allow parties to learn their rights ‘before a claim has accrued.’”
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`Everly, 958 F.3d at 466 (Murphy, J., concurring) (quoting Restatement (Second) of Judgments
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`§ 33 cmt. a).
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`So how would a “claim” between Don and Phil’s estate arise if the Declaratory Judgment
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`Act did not exist? Most likely, Phil’s estate would pursue relief against Don for Phil’s share of
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`the royalties under the “accounting” cause of action that I mentioned. The estate would assert
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`that Phil qualified as a “co-author” under the copyright laws and so was entitled to half of the
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`royalties. See Everly, 958 F.3d at 467 (Murphy, J., concurring). Assuming that the federal
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`statute of limitations would apply to this state-law claim because it turned on a federal question,
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`cf. id., Phil’s estate would assert the “direct claim” against Don, Int’l Ass’n of Machinists,
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`108 F.3d at 668. And Don could invoke the statute of limitations in his defense. That is
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`essentially what Don sought to do with this preemptive declaratory-judgment suit. Suppose that
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`Don’s complaint expressly asked for a declaration that the three-year statute of limitations had
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`run on the claim by Phil’s estate that Phil was a co-author. It would make no sense to say that
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`Phil’s estate could raise this co-authorship claim as a defense to Don’s preemptive statute-of-
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`limitations defense against that very claim. Two parties to a lawsuit cannot both be raising
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`“defenses.”
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`This idea that we must look to how the “claim” would arise outside the declaratory-
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`judgment context is nothing new. An analogy to federal-question jurisdiction proves the point.
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`See 28 U.S.C. § 1331. Under the “well-pleaded complaint” rule, a suit arises under federal law
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`within the meaning of § 1331 only if the plaintiff’s suit is based on federal law, not if the
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`defendant has a federal-law defense to a state-law suit. See Vaden v. Discover Bank, 556 U.S.
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`49, 59–60 (2009). But suppose the hypothetical defendant preemptively seeks a declaratory
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`judgment that its federal defense invalidates the state-law claim. Does the suit arise under
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`federal law because the declaratory-judgment complaint seeks federal relief on its face? No. We
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`must look to the hypothetical claim for coercive relief by the future plaintiff (and current
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`declaratory-judgment defendant) to determine our jurisdiction. See Franchise Tax Bd. v. Constr.
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`Laborers Vacation Tr., 463 U.S. 1, 16–19 (1983); AmSouth Bank v. Dale, 386 F.3d 763, 775 (6th
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`Cir. 2004). I would interpret the word “claim” in the copyright statute of limitations to follow
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`the same approach.
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`That brings me to the oddity of our current framework, which applies different rules to
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`claims between co-authors than those that apply to claims between an author and a third-party
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`infringer. Among other issues, the parties here dispute the validity of the purported termination
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`by Phil’s estate of a license that Phil and Don granted to Acuff-Rose in 1960. Compl., R.1,
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`PageID 5–11. The court rightly holds that, under our plain-and-express-repudiation test, the
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`statute of limitations bars the “claim” by Phil’s estate that Phil qualifies as a co-author in the suit
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`with Don. That is because we would treat the estate’s declaratory-judgment suit seeking a
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`declaration of co-authorship status as a “direct claim” for coercive relief. Int’l Ass’n of
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`Machinists, 108 F.3d at 668.
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`But what if Phil’s estate had also asserted a crossclaim against Sony/ATV (the successor
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`to Acuff-Rose) seeking a declaration that Sony/ATV would infringe Phil’s copyright if it
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`continued to publish Cathy’s Clown because the estate validly terminated the license? Cf. Milne
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`ex rel. Coyne v. Stephen Slesinger, Inc., 430 F.3d 1036, 1041 (9th Cir. 2005). Phil’s estate
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`wou