UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

┐ ADELAIDA GARZA, Personal Representative for the │ Estate of Isaac Donald Everly, │ Plaintiff-Appellee, │ > No. 21-5530 │ v. │ │ PATRICE Y. EVERLY; PHILLIP J. EVERLY; CHRISTOPHER │ EVERLY; PHILLIP EVERLY FAMILY TRUST; EVERLY AND │ SONS MUSIC (BMI), │ Defendants-Appellants. │ ┘

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.

Decided and Filed: February 10, 2023

Before: GUY, BUSH, and MURPHY, Circuit Judges.

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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.

BUSH, J., delivered the opinion of the court in which GUY and MURPHY, JJ., joined. MURPHY, J. (pp. 12–15), delivered a separate concurring opinion. No. 21-5530 Garza v. Everly Page 2

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OPINION _________________

JOHN K. BUSH, Circuit Judge. “Phil and Don,” once again, are “knocking at the door.”1 See Everly v. Everly, 958 F.3d 442 (6th Cir. 2020). The Everly Brothers are a famous musical duo known for many hits. Cathy’s Clown is the one at issue in this appeal. Older brother Isaac Donald Everly (“Don”) and younger brother Philip Everly (“Phil”) are now both deceased, but their estates2 contest authorship over Cathy’s Clown. Don’s estate claims full authorship, while Phil’s estate claims co-authorship.

While both brothers may have co-authored the lyrics and tune as a matter of fact, Don’s estate alleges that Phil is no longer an author as a matter of copyright law. That is because Don allegedly expressly repudiated Phil’s authorship, triggering a three-year window for Phil to re- assert authorship under the Copyright Act. On November 8, 2017, Don sued Phil’s estate for a declaratory judgment that Don is sole author of Cathy’s Clown and should receive the benefits therefrom. The district court granted Don summary judgment, and we reversed because there was a genuine issue of material fact as to whether Don repudiated Phil’s authorship. After a bench trial, the district court found that Don did repudiate Phil’s authorship and Phil failed to re- assert that he was an author. The district court further determined that because Phil failed to re- assert that he was an author, he was time-barred from asserting he was a co-author as a defense to Don’s suit. Phil’s estate contests this finding and, in addition, asserts that the three-year statute of limitations applies only to authorship claims, not defenses, and so it should be allowed to argue that Phil was an author to defend against Don’s suit. We hold that Don’s estate may rely on the statute of limitations here. Because the district court did not clearly err in finding that Phil failed to exerci