RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 23a0026p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

ADELAIDA GARZA, Personal Representative for the 

Estate of Isaac Donald Everly,

Plaintiff-Appellee,

v.

PATRICE Y. EVERLY; PHILLIP J. EVERLY; CHRISTOPHER 

EVERLY; PHILLIP EVERLY FAMILY TRUST; EVERLY AND 

SONS MUSIC (BMI),

Defendants-Appellants.

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No. 21-5530

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.

_________________

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

_________________

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 estates2contest 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 reassert 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 reassert that he was an author. The district court further determined that because Phil failed to reassert 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 exercise his rights after Don repudiated his authorship, we AFFIRM.

1PAUL MCCARTNEY & WINGS, Let ‘Em In, on WINGS AT THE SPEED OF SOUND (Capitol Records 1976).

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.
No. 21-5530 Garza v. Everly Page 3

I.

We briefly recite the history behind this case, as further detail can be found in our earlier 

opinion, Everly v. Everly, 958 F.3d 442, 445–47 (6th Cir. 2020). Although some facts are 

muddied given the long history of this case, we will rely on the trial court, which conducted a 

two-day bench trial on April 27 and 28, 2021. See Everly v. Everly, 536 F. Supp. 3d 276 (M.D. 

Tenn. 2021).

The year was 1960. Cathy’s Clown was recorded, released, and copyrighted—eventually 

becoming one of the brothers’ most famous songs. Everly, 958 F.3d at 445. The copyrights 

listed Phil and Don as authors, and both brothers were credited as co-authors and received 

royalties. Although the brothers shared credit for many years, over time, their relationship 

soured. Don, around 1980, began pressuring Phil to take his name off the song.3 The district 

court believed Don’s testimony that he sent Phil a letter saying “you can give me my songs 

back,” which referred to Cathy’s Clown and other songs. It also concluded based on witness 

testimony that Don placed a telephone call to Phil, during which Phil appears to have implied he 

was a co-author, but nonetheless allowed Don to take full authorship. On June 10 and 11, 1980, 

Phil signed five documents titled “Release and Assignment,” all notarized, related to Cathy’s 

Clown and sixteen other works. The release related to Cathy’s Clown states, “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.” Memorandum Opinion, R.103, at 15 (citation omitted) (emphasis added by district 

court). 

The district court viewed this release as a signal that Phil acquiesced to Don’s repudiation 

of Phil’s authorship. Further, an email introduced at trial from Lewis Anderson, owner of a 

company that helps songwriters such as Phil recapture copyright ownership, indicates Phil 

acknowledged he made “an agreement with Don to remove himself as writer of ‘Cathy’s 

Clown.’” The district court recognized some contradictory evidence of Phil’s factual authorship, 

particularly a 1984 television interview (which postdates the 1980 release) during which Don 

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.
No. 21-5530 Garza v. Everly Page 4

explains the creation of Cathy’s Clown: “I started a song, called Phil over, he came over and we 

worked—we hashed it out, and went into the studio.” Memorandum Opinion, R.103, at 19–20. 

But the district court determined that “worked” and “hashed it out” did not establish Phil’s 

contributions to writing lyrics or composition. In fact, Don asserted vehemently at trial that he 

alone wrote the entire song Cathy’s Clown, testimony which the district court found “very 

credible.”

All in all, the district court found that, according to a preponderance of the evidence, 

“Don plainly and expressly repudiated Phil’s authorship” of Cathy’s Clown by letter and 

telephone call in 1980, culminating in the 1980 “Release and Assignment.” This express 

repudiation triggered a three-year window for Phil to make an authorship claim under the 

Copyright Act—which Phil undisputedly failed to do.

The district court also rejected Phil’s estate’s argument that the three-year statute of 

limitations should not apply to the defense that Phil is co-author. While it is true that statutes of 

limitations do not usually apply to defenses, the district court viewed Phil’s authorship claim as 

“amount[ing] to” an affirmative claim. Id. at 22. It viewed Phil’s estate as “skirting” the statute 

of limitations by bringing a claim in the form of a defense. Id. at 25. Further, the district court 

noted that it was Phil’s estate which “sought to topple the status quo” by attempting to terminate 

the 1980 release. Id. at 27. Because Phil’s authorship claim was time-barred, the district court 

entered judgment for Don’s estate. Id. at 29–30. 

II.

On appeal from a judgment entered after a bench trial, “we review the district court’s 

findings of fact for clear error and its conclusions of law de novo.” Kehoe Component Sales Inc. 

v. Best Lighting Prods., 796 F.3d 576, 585 (6th Cir. 2015) (quoting Beaven v. U.S. Dep’t of Just., 

622 F.3d 540, 547 (6th Cir. 2010)). Phil’s estate raises three general arguments on appeal: (1) it

contests the district court’s application of certain aspects of the Copyright Act’s scheme for 

handling authorship claims; (2) it argues the district court’s finding of express repudiation was 

error; and (3) it disagrees with the district court’s holding that the statute of limitations of three 

years for a copyright claim bars an authorship “defense.” We consider these arguments in turn.
No. 21-5530 Garza v. Everly Page 5

III.

A copyright initially vests in the author or authors of a work. 17 U.S.C. § 201(a). 

Authors can transfer ownership of a copyright to, say, a publisher, which would grant said 

publisher exclusive rights to reproduce and distribute the work. Everly, 958 F.3d at 449. 

Authors, even if they transfer ownership, retain some rights, including a termination right, which 

allows authors to regain copyright ownership down the line. Id. at 449–450. Termination rights 

cannot be transferred. Id. at 450.

A person must bring a claim under the Copyright Act “within three years after the claim 

accrued.” 17 U.S.C. § 507(b). This three-year statute of limitations begins to run between coauthors when “there is a ‘plain and express repudiation’ . . . by one party as against the other.” 

Everly, 958 F.3d at 450 (quoting Ritchie v. Williams, 395 F.3d 283, 288 n.5 (6th Cir. 2005)). 

Such a claim “accrues only once,” at the time of repudiation. Id. at 450 (quoting Roger Miller 

Music v. Sony/ATV Publ’g, 477 F.3d 383, 390 (6th Cir. 2007)). Repudiation must come from 

someone claiming authorship, not a third party. Id. at 453. “Allowing authors to sleep on their 

rights even after they have been repudiated would inject instability into an area of copyright law 

that calls out for certainty.” Id.

Phil’s estate makes two arguments to avoid application of this scheme. First, it asserts 

that because termination rights are inalienable, the district court’s holding that Phil is not a coauthor violates the Copyright Act by alienating his termination rights. Citing Nimmer, Phil’s 

estate notes that “authors and their successors may terminate copyright assignments in spite of 

any contractual device that purports to divest them of the right.” 3 Melville B. Nimmer and 

David Nimmer, NIMMER ON COPYRIGHT § 11.07. Therefore, the district court created a “workaround” to allow divestiture of termination rights.

We disagree. The district court nowhere held that authors can divest their copyright 

termination rights by contract. Rather, the statute of limitations plainly bars claims three years 

after they accrue, so adhering to that language gives effect to the statutory framework, rather 

than nullifying it. Authors who fail to bring a timely authorship claim no longer have 

termination rights to alienate.
No. 21-5530 Garza v. Everly Page 6

Phil’s estate also argues that the statute of limitations should start running only after a 

formal termination notice is sent, which is when it believes Phil’s authorship claims first had to 

be asserted. But under our case law, the trigger for starting the clock on raising an authorship 

claim is a plain and express repudiation, Ritchie, 395 F.3d at 288 n.5, which can occur even if 

there is no formal termination notice. Indeed, we have noted repudiation is akin to adverse 

possession, Everly, 958 F.3d at 451; a landowner need not be served with a document for the 

adverse possession clock to run.

Nor are we sympathetic that some members of Phil’s estate, including descendants of 

Phil, are “newfound claimants.” Phil’s descendants cannot inherit authorship rights beyond what 

Phil himself possessed. Put another way, the statute of limitations does not refresh itself simply 

because Phil passed away and his descendants want to bring a belated authorship claim.

With those issues resolved, we now turn to the statutory scheme for authorship disputes.

IV.

We examine two issues: (1) whether the district court clearly erred in finding that Don 

repudiated Phil’s authorship and Phil did not object to that repudiation within three years, and 

(2) whether Don’s estate may rely on the three-year statute of limitations to bar Phil’s estate’s 

assertion of co-authorship. 

A. The Repudiation

The key question is whether the district court committed clear error in finding that Don 

repudiated Phil’s authorship around the year 1980. It is undisputed Phil did not bring a timely 

claim to maintain co-author status after this time. Therefore, if Don repudiated Phil’s authorship, 

Phil’s estate is barred from bringing an affirmative authorship claim. We hold that the district 

court did not clearly err in finding that Don repudiated Phil’s authorship.

It is undisputed that in 1980, Phil signed five notarized documents titled “Release and 

Assignment” that relinquished “his claim as co-composer.” Memorandum Opinion, R.103, at 

14–15. Further, the district court found that Don, by letter and telephone call, told Phil that Don 

was sole author and demanded Phil “take his name off” Cathy’s Clown. Id. at 14. Terri Brown, 
No. 21-5530 Garza v. Everly Page 7

a witness with ties to the entertainment industry and a close friend of Phil’s, testified that Phil 

told her he had “given up his share of writing” in Cathy’s Clown. Id. at 13. Joey Paige, former 

bass player for the Everly Brothers and close friend of Phil’s, testified that he was present when 

Phil received the phone call from Don and that Phil said he would give the song back to Don. Id.

at 12. The district court noted, too, that after these events in 1980, credit for the song accrued to 

Don only, and Phil treated the song as Don’s. In fact, Phil made efforts to terminate copyright 

grants for other lucrative songs, but not for Cathy’s Clown. Phil told Lewis Anderson, owner of 

a company that helps songwriters recapture copyright ownership, that he had “made an 

agreement with Don to remove himself as writer of ‘Cathy’s Clown.’” Id. at 16–17. 

A termination notice was filed for Cathy’s Clown only by Phil’s descendants and only after his 

passing.

The district court also considered contrary evidence, including the testimony of Patti 

Everly, who was married to Phil until his death. She testified to the effect that Phil had recently 

been contemplating recapturing the copyright and that termination notices may have been written 

but not done correctly. The district court did not find this testimony credible given other 

evidence in the record and the fact that Phil had successfully filed termination notices for 

nineteen songs through the same person allegedly charged with terminating the rights of Cathy’s 

Clown. Lewis Anderson could not find any evidence of a notice of termination for Cathy’s 

Clown. And although Phil’s estate portrays Don as a “bully” and points to Phil’s distress 

surrounding losing the rights to Cathy’s Clown, Phil may have had legitimate reasons for giving 

up authorship, including keeping family peace and making up for Don’s generosity in crediting 

Phil for other songs of which Phil was not an author. 

Altogether, the district court found, “by a preponderance of the evidence, that Don 

plainly and expressly repudiated Phil’s authorship of ‘Cathy’s Clown’ by letter and then by 

telephone call in 1980 and that the 1980 Release was intended to be a memorialization of that 

repudiation.” Id. at 21. That finding is not clearly erroneous. Therefore, Phil’s estate is barred 

from bringing an affirmative co-authorship claim.
No. 21-5530 Garza v. Everly Page 8

B. Applicability of Statutes of Limitations to Defenses

Even if Phil’s estate is barred from raising an affirmative co-authorship claim, may it 

raise co-authorship as a defense? It originally raised authorship as a counterclaim, not a defense. 

Don then raised the statute of limitations as an affirmative defense to the counterclaim. In a 

motion for reconsideration before the district court, Phil’s estate essentially reframed the 

counterclaim into a defense, making the argument that the statute of limitations could not be used 

as a “sword” against the defense of co-authorship. Everly, 958 F.3d at 448. The first time this 

case reached our court, we did not reach this issue because it had not been argued until the 

motion-for-reconsideration stage. Id. at 449. However, the district court reached this issue on 

remand, and the issue is fully briefed. Further, this defense has the same content as the original 

counterclaim—that Phil is co-author—and therefore allowing it to be raised would not result in 

unfair surprise. See Rogers v. IRS, 822 F.3d 854, 856 (6th Cir. 2016) (quoting Lauderdale v. 

Wells Fargo Home Mortg., 552 F. App’x 566, 573 (6th Cir. 2014)) (allowing defense to be 

raised late if it does not surprise or prejudice the plaintiff). We therefore address it now.

A principal justification for statutes of limitations is to prevent surprises from the revival 

of dormant claims after witnesses have passed and evidence has been lost. Ord. of R.R. 

Telegraphers v. Ry. Express Agency, Inc., 321 U.S. 342, 348–49 (1944); see also United States v. 

W. Pac. R.R. Co., 352 U.S. 59, 72 (1956) (“The purpose of such statutes is to keep stale litigation 

out of the courts.”). Many other justifications for statutes of limitations have been proffered. 

See Tyler T. Ochoa & Andrew Wistrich, The Puzzling Purposes of Statutes of Limitation, 

28 PAC. L.J. 453, 453 (1997) (e.g., reducing litigation, promoting diligence, and avoiding 

retrospective application of new standards). The federal limitations period for copyright claims 

serves two special purposes: (1) to render uniform and certain the time frame for copyright 

claims and (2) to prevent forum shopping resulting from disuniform state limitations periods. 

Petrella v. MGM, 572 U.S. 663, 670 (2014). 

Generally, however, statutes of limitations do not apply to defenses. See W. Pac. R.R., 

352 U.S. at 72; Est. of Hogarth v. Edgar Rice Burroughs, Inc., 342 F.3d 149, 163–64 (2d Cir. 

2003) (quoting Luckenbach S.S. Co. v. United States, 312 F.2d 545, 548–51, 552 n.3 (2d Cir. 

1963)) (“The law is well settled that limitations do not normally run against a defense.”). That is, 
No. 21-5530 Garza v. Everly Page 9

at least in part, because the ability to raise a defense is not expected to stir up litigation about old 

issues. See W. Pac. R.R., 352 U.S. at 72. In addition, if defenses could expire, a potential 

plaintiff could wait until defenses are time barred and then “pounce” on the defendant. City of 

St. Paul v. Evans, 344 F.3d 1029, 1034 (9th Cir. 2003).

In this vein, Phil’s estate relies on Estate of Hogarth, in which the Second Circuit held 

that a defendant could raise a work-for-hire defense in the copyright context even if it would be 

barred as a claim. 342 F.3d at 163. The court reasoned, “A defendant who is not seeking any 

affirmative relief and who asserts a defense only to defeat a plaintiff's claim is not barred by a 

statute of limitations. . . . Potential defendants are not required to seek at the earliest opportunity 

a declaration that a defense to a claim not yet brought is valid.” Id. at 163–64 (citations omitted). 

However, it is important that a defendant only seek to defend himself, rather than use a defense 

as a work-around to bring a time-barred claim. See Evans, 344 F.3d at 1034–35 (“It is important 

that the party asserting the defense is not, simultaneously or in parallel litigation, seeking 

affirmative recovery on an identical claim. Thus, whether affirmative defenses are exempt from 

statutes of limitations largely hinges on a realistic assessment of the parties’ litigation posture.”).

In Evans, a plaintiff city sought to void a settlement after the statute of limitations had 

passed on its claims. Id. at 1033. The district court allowed identical affirmative defenses to be 

raised in response to counterclaims. Id. On appeal, the Ninth Circuit reversed, emphasizing the 

importance of “a realistic assessment of the parties’ litigation posture.” Id. at 1035. A party 

who, in raising a defense, is “seeking affirmative recovery” or using “subterfuge to characterize a 

claim as a defense in order to avoid a temporal bar,” id. (citing Mobil Oil Corp. v. Dep’t of 

Energy, 728 F.2d 1477, 1488 (Temp. Emer. Ct. App. 1983)), is an “aggressor” and thus is not 

merely defending itself, id. To hold otherwise, the court explained, would allow “jurisdictional 

jujitsu” to be used to “evade” a statute of limitations. Id. at 1031. We agree with the Ninth 

Circuit’s analysis and adopt this rule for the limited situation where a defendant is seeking 

affirmative relief packaged within a defense and is attempting to dodge a statute of limitations 

that is an important part of the statutory framework.

Is Phil’s estate seeking affirmative relief or merely trying to defend itself? It originally 

raised co-authorship as a counterclaim. It sought a declaratory judgment that Phil is co-author 
No. 21-5530 Garza v. Everly Page 10

and entitled to “one-half of the income earned from the exploitation of the Composition.” 

Answer, Affirmative Defenses and Counterclaim, R.5, PageID 71. Ultimately, then, the estate is 

asserting authorship and the financial benefits thereof. 

It is hard to see how Phil’s estate is not seeking affirmative relief. As we have held, it 

would not be able to bring suit over authorship as an affirmative claim. Yet it attempts to bring 

the exact same claim as a defense to assert that Phil was co-author. We do not adopt a 

formalistic approach that would allow Phil’s estate to relabel its assertions as a defense in order 

to employ a “jurisdictional jujitsu” to evade a statute of limitations. See Evans, 344 F.3d at 

1031. Here, the statutory scheme is intended to create certainty after three years, and the estate 

may not avoid that outcome at this late stage. 

We do not hold, however, that Phil’s estate may never raise Phil’s authorship as a 

defense. For example, if Don’s estate were seeking damages for infringement, for defamation, or 

the like, Phil’s estate perhaps could rely on Phil’s factual authorship of Cathy’s Clown, if proved, 

to reduce its liability to the extent authorship is relevant. But here, Phil’s estate attempts to use a 

defense to secure the benefits of authorship—despite its authorship claims being barred. See Est.

of Hogarth, 342 F.3d at 163 (quoting W. Pac. R.R., 352 U.S. at 72) (“A defendant who is not 

seeking any affirmative relief and who asserts a defense only to defeat a plaintiff's claim is not 

barred by a statute of limitations.”) (emphasis added). Therefore, Phil’s authorship can 

conceivably be used as a defense in other contexts, but not in a legal contest over who owns the 

rights to and profits from Cathy’s Clown—an issue that was settled by Don’s repudiation long 

ago.

Phil’s estate also disputes the district court’s finding that it was the party who “sought to 

topple the status quo.” Appellants’ Br. at 37 (quoting Memorandum Opinion, R.103, at 27). We 

agree it is not necessarily clear that it is Phil’s estate that attempted to disrupt the status quo. In 

2011, Don filed termination notices to recapture the full rights and ownership of Cathy’s Clown. 

Letter to Jay Bowen, R. 41-1, PageID 900–01. Therefore, if Phil factually co-authored Cathy’s 

Clown, Don arguably intruded on that situation by attempting to recapture full rights and 

ownership. But this point is moot because Phil’s estate is seeking affirmative relief that is barred 

by the statutory framework.
No. 21-5530 Garza v. Everly Page 11

Therefore, we conclude Phil’s estate is barred from claiming authorship as a defense in 

this context.

V.

In sum, we hold that the district court did not clearly err in finding that Don repudiated 

Phil’s authorship of the song Cathy’s Clown and that Phil did not respond to the repudiation by 

asserting his authorship rights within the applicable statute-of-limitations period. Therefore, Phil 

Everly’s heirs and successors are barred from claiming or exercising rights related to authorship 

of the song Cathy’s Clown. We AFFIRM the judgment of the district court.
No. 21-5530 Garza v. Everly Page 12

_________________

CONCURRENCE

_________________

MURPHY, Circuit Judge, concurring. The majority opinion cogently explains why we 

must affirm the district court’s fact-bound conclusion that Don Everly plainly and expressly 

repudiated Phil Everly’s co-authorship of Cathy’s Clown in 1980. Because our cases treat a 

person’s status as a copyright author or owner as a “claim,” the district court’s conclusion of a 

plain and express repudiation means that the Copyright Act’s three-year statute of limitations has 

run on the “claim” by Phil’s estate that Phil co-authored Cathy’s Clown. See Everly v. Everly, 

958 F.3d 442, 450–55 (6th Cir. 2020). I write to reaffirm my “doubt over whether our [plainand-express-repudiation] test is the right way to think about the start date for this statute of 

limitations.” Id. at 460 (Murphy, J., concurring). 

To summarize, our test has two problems. The statute’s text adopts an occurrence rule

that starts the limitations period on the date that the claim “accrued”—that is, the date that the 

claim came into existence (whether or not a plaintiff knows of it). 17 U.S.C. § 507(b). But our 

test follows a discovery rule that starts the limitations period on the date that a plaintiff should 

have known that another author has repudiated the plaintiff’s authorship interest. See Everly, 

958 F.3d at 460–63 (Murphy, J., concurring). Next, the statute’s text starts the limitations period 

not just when anything accrues but when a claim accrues—that is, when the plaintiff has a 

completed cause of action for relief whose elements have all been met. 17 U.S.C. § 507(b); see 

Petrella v. Metro-Goldwyn-Mayer, Inc., 572 U.S. 663, 670 (2014). Our test treats a party’s 

authorship or ownership as a “claim” even though it is merely one element of a claim for 

copyright infringement (between a copyright owner and a third-party infringer) or an equitable 

distribution of royalties (between co-owners). See Everly, 958 F.3d at 463–68 (Murphy, J., 

concurring).

In my mind, the new question in this second appeal (Does the Copyright Act’s statute of 

limitations apply to a party’s “defense”?) further illuminates the oddity of our approach. 

To answer this question, start with the text: “No civil action shall be maintained under the 
No. 21-5530 Garza v. Everly Page 13

provisions of this title unless it is commenced within three years after the claim accrued.” 17 

U.S.C. § 507(b). This language says nothing about barring a defendant’s “defense”; it covers a 

plaintiff’s “claim.” The answer to the question whether the statute applies to a defense thus is an 

unambiguous “no.” As the majority opinion notes, if a plaintiff sought damages from a 

defendant for copyright infringement under 17 U.S.C. § 501(b), the defendant could assert a coownership defense because co-owners cannot sue each other for infringement under our 

precedent. See Severe Records, LLC v. Rich, 658 F.3d 571, 582 (6th Cir. 2011). So Phil might 

at first appear to have the better of the argument when he says that he may raise his coauthorship status as a “defense” to Don’s suit.

Yet Don’s suit adds a complexity that we must account for. He did not sue Phil’s estate 

for royalties under an equitable “accounting” cause of action. See Everly, 958 F.3d at 467 

(Murphy, J., concurring). Rather, he sued Phil’s estate for a declaration of rights under the 

Declaratory Judgment Act. Compl., R.1, PageID 1. Don asked the court to “declare” that he 

was entitled to 100% of the royalties from Cathy’s Clown and that the estate was entitled to 

none. Id., PageID 2, 12–13. I read the copyright statute of limitations as using the word “claim” 

as a term of art to refer to the “direct claim” that would arise between the parties outside the 

declaratory-judgment context. Int’l Ass’n of Machinists & Aerospace Workers v. Tenn. Valley 

Auth., 108 F.3d 658, 668 (6th Cir. 1997). As I said before, “a declaration is a remedy, not a 

claim, and its main benefit is to allow parties to learn their rights ‘before a claim has accrued.’” 

Everly, 958 F.3d at 466 (Murphy, J., concurring) (quoting Restatement (Second) of Judgments 

§ 33 cmt. a). 

So how would a “claim” between Don and Phil’s estate arise if the Declaratory Judgment 

Act did not exist? Most likely, Phil’s estate would pursue relief against Don for Phil’s share of 

the royalties under the “accounting” cause of action that I mentioned. The estate would assert 

that Phil qualified as a “co-author” under the copyright laws and so was entitled to half of the 

royalties. See Everly, 958 F.3d at 467 (Murphy, J., concurring). Assuming that the federal 

statute of limitations would apply to this state-law claim because it turned on a federal question, 

cf. id., Phil’s estate would assert the “direct claim” against Don, Int’l Ass’n of Machinists, 

108 F.3d at 668. And Don could invoke the statute of limitations in his defense. That is 
No. 21-5530 Garza v. Everly Page 14

essentially what Don sought to do with this preemptive declaratory-judgment suit. Suppose that 

Don’s complaint expressly asked for a declaration that the three-year statute of limitations had 

run on the claim by Phil’s estate that Phil was a co-author. It would make no sense to say that 

Phil’s estate could raise this co-authorship claim as a defense to Don’s preemptive statute-oflimitations defense against that very claim. Two parties to a lawsuit cannot both be raising 

“defenses.”

This idea that we must look to how the “claim” would arise outside the declaratoryjudgment context is nothing new. An analogy to federal-question jurisdiction proves the point. 

See 28 U.S.C. § 1331. Under the “well-pleaded complaint” rule, a suit arises under federal law 

within the meaning of § 1331 only if the plaintiff’s suit is based on federal law, not if the 

defendant has a federal-law defense to a state-law suit. See Vaden v. Discover Bank, 556 U.S. 

49, 59–60 (2009). But suppose the hypothetical defendant preemptively seeks a declaratory 

judgment that its federal defense invalidates the state-law claim. Does the suit arise under 

federal law because the declaratory-judgment complaint seeks federal relief on its face? No. We 

must look to the hypothetical claim for coercive relief by the future plaintiff (and current 

declaratory-judgment defendant) to determine our jurisdiction. See Franchise Tax Bd. v. Constr. 

Laborers Vacation Tr., 463 U.S. 1, 16–19 (1983); AmSouth Bank v. Dale, 386 F.3d 763, 775 (6th 

Cir. 2004). I would interpret the word “claim” in the copyright statute of limitations to follow 

the same approach.

That brings me to the oddity of our current framework, which applies different rules to 

claims between co-authors than those that apply to claims between an author and a third-party 

infringer. Among other issues, the parties here dispute the validity of the purported termination 

by Phil’s estate of a license that Phil and Don granted to Acuff-Rose in 1960. Compl., R.1, 

PageID 5–11. The court rightly holds that, under our plain-and-express-repudiation test, the 

statute of limitations bars the “claim” by Phil’s estate that Phil qualifies as a co-author in the suit 

with Don. That is because we would treat the estate’s declaratory-judgment suit seeking a 

declaration of co-authorship status as a “direct claim” for coercive relief. Int’l Ass’n of 

Machinists, 108 F.3d at 668.
No. 21-5530 Garza v. Everly Page 15

But what if Phil’s estate had also asserted a crossclaim against Sony/ATV (the successor 

to Acuff-Rose) seeking a declaration that Sony/ATV would infringe Phil’s copyright if it 

continued to publish Cathy’s Clown because the estate validly terminated the license? Cf. Milne 

ex rel. Coyne v. Stephen Slesinger, Inc., 430 F.3d 1036, 1041 (9th Cir. 2005). Phil’s estate 

would have to prove his co-authorship (technically, his co-ownership through that co-authorship) 

as an element of this infringement claim. See Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 

U.S. 340, 361 (1991). But the statute of limitations would not stand in the way of the estate’s 

attempt to do so because the claim would not accrue until Sony/ATV’s potential act of 

infringement. See Petrella, 572 U.S. at 670–71. And if Phil proved his co-authorship in this 

crossclaim, I would have no idea where the future royalties should go. Don would have won a 

declaration that the statute-of-limitations had run on the “authorship” claim by Phil’s estate 

against Don, but Phil’s estate would have won a declaration that Sony/ATV would infringe his 

copyright rights as a co-author. 

In short, the claims among co-authors and infringers relate to each other and should 

follow the same accrual rules. But we and other circuit courts treat them differently. Although 

I remain dubious of that approach, I concur in the majority’s opinion because it represents 

current law.