Encore in Copyright Fight Over Gospel Hit

     CINCINNATI (CN) – A federal jury improperly gave a family some footing to fight for the rights to the 1975 gospel hit “I’ll Fly Away,” the 6th Circuit ruled.
     The children of Albert Brumley Sr. have been battling each other over the ownership of the late songwriter’s gospel song since 2008.
     Brumley Sr. had assigned the copyright to two of his six children, Robert and William Brumley, in 1975 when he sold them his interest in Brumley and Sons for $100,000.
     When the patriarch died nearly two years later, he bequeathed all of his property, including his interests in any copyrights, to his wife Goldie.
     Goldie executed another bill of sale in 1979 that asserted sole and rightful ownership of all of Brumley Sr.’s songs and purported to assign those rights Brumley and Sons for $1.
     Robert bought out William’s share of Brumley and Sons in 1986, and their mother died two years later.
     Matters finally heated up in 2006 when Robert and William’s four brothers had the U.S. Copyright Office terminate the 1975 transfer of rights in “I’ll Fly Away.”
     When the brothers sued Robert, he claimed that the termination was invalid for two reasons: “(1) Brumley, Sr. was not the statutory author of the song; and (2) a 1979 assignment of interests in Brumley, Sr.’s songs by Brumley, Sr.’s widow prevented the Brumley heirs from later exercising their termination rights,” according to the ruling.
     A federal jury in Nashville concluded, however, that Brumley Sr. was the statutory author of the song, and that Goldie’s 1979 assignment did not nullify her children’s termination rights.
     On appeal, Robert argued that the transcript of a 1977 conversation involving Albert Brumley Sr. and his son, Albert Brumley Jr., was wrongfully admitted into evidence, and that the court erred by excluding two magazine articles from the trial.
     Though a three-judge panel of the 6th Circuit found that the 1977 conversation was properly included, the court said that the articles were admissible, too.
     The 1977 conversation involved Brumley Sr. mentioning that “I sold some of the songs including ‘I’ll Fly Away’ and two others for three dollars.'”
     Robert Brumley claimed the conversation was hearsay, but it was admitted under the residual hearsay exception of Rule 807, which allows certain statements, if “(1) the statement has equivalent circumstantial guarantees of trustworthiness; (2) the statement is offered as evidence of a material fact; (3) the statement is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts; and (4) admitting the statement will best serve the purposes of the Rules of Evidence and the interests of justice.”
     Robert claimed the statements failed to meet the circumstantial guarantees of trustworthiness, but the appellate panel disagreed based on “a number of factors.”
     “First, the statements should be considered more reliable than not given that Brumley Sr. and Brumley Jr. are father and son and not strangers,” Judges Boyce Martin Jr. wrote for the court. “Second, there is no indication that Brumley Sr. lacked capacity at the time that he gave the statement. … Third, Robert has not alleged that Brumley Sr. was an untruthful person. Fourth, the statement is clear and unambiguous. Finally, the fact that Brumley Jr. recorded the conversation adds an element of formality, which suggests that Brumley Sr. may have given his statements added consideration.”
     As for the magazine articles – which included one from a 1977 edition of Music City News and another published in a 1986 edition of Bluegrass Unlimited – the District Court chose not to introduce them to the jury over concerns that “the danger of unfair prejudice, confusion of the issues, or misleading the jury” substantially outweighed their probative value.
     Robert Brumley said the articles proved that his father was an employee of the Hartford Music Co. when he wrote “I’ll Fly Away,” thereby making the song a “work made for hire.”
     Ultimately the appellate panel rejected the District Court’s conclusion that “there is no clear indication in these articles as to how the authors acquired the information that they used to make representations regarding Brumley’s employment status at the relevant time.”
     Martin wrote: “It is clear where the authors acquired the relevant information. It is apparent from the context of the Stubblefield article that Stubblefield interviewed Brumley Sr., and the notes section at the conclusion of Malone’s article lists all of Malone’s sources, which include Brumley Sr. and Eugene M. Bartlett, former President of Hartford.”
     The articles will now be included as evidence in the case, which was remanded to the District Court of Tennessee at Nashville for further proceedings.

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