Sixth Circuit Reverses Evidentiary Rulings In Dispute Amongst Gospel Composer's Heirs

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By Tamlin H. Bason  


A lower court erred when it excluded from evidence old newspaper documents that might have shed light on whether a gospel song penned in the late 1920s was written pursuant to a work for hire agreement, the U.S. Court of Appeals for the Sixth Circuit ruled Aug. 15 (Brumley v. Albert E. Brumley & Sons, Inc., 6th Cir., No. 12-5386, 8/15/13)

The two articles, written in the 1970s and 1980s, should have been given to the jury under the ancient documents exception to the hearsay rule, the appeals court said, noting that the information contained in the documents might have probative value with respect to the key issue of whether the author's heirs were entitled exercise their termination rights. The court accordingly reversed the lower court's evidentiary ruling and remanded.

Gospel Composer's Heirs Seek Termination

Albert E. Brumley Sr. was a gospel composer who wrote the hymn “I'll Fly Away.” That song, Brumley's most popular, was written in either 1928 or 1929.

It is unclear whether Brumley was an employee of Hartford Music Co. at the time that he composed “I'll Fly Away.” However, Hartford Music did obtain the initial copyright to the song in 1932 when the song was published in a songbook. In the 1940s. Brumley created his one music publishing company, Albert E. Brumley & Sons Inc., and in 1947 he purchased all of Hartford Music's assets, including the copyright in “I'll Fly Away.”

In 1975, Brumley sold his interest in Brumley & Sons to two of his sons, William and Robert, for $100,000. A short time later, Brumley and his wife Goldie executed a separate agreement conveying certain personal property, including the copyright interest in the composition, to William and Robert.

Brumley died in 1977 and was survived by Goldie and their six children. In 1979, Goldie executed another conveyance purporting to transfer all ownership rights to her late husband's songs to Brumley & Sons. Goldie died in 1988.

In 2006, Brumley's four other children--other than William and Robert--sought to terminate the 1975 transfer agreement from Brumley to William and Robert. Robert, who in 1986 had bought all of William's interest in the company, resisted the termination. This lawsuit was then filed in the U.S. District Court for the Middle District of Tennessee.

Robert mounted two arguments against the termination. First, he argued that his father was an employee of Hartford Music when the song was written, and thus the song was composed pursuant to a work for hire agreement. Such compositions, Robert pointed out, are not subject to the Copyright Act's termination provision under 17 U.S.C. §304.

In the alternative, Robert argued that his mother's 1979 transfer agreement complied with Section 304. Section 304(d) permits heirs to exercise just one termination of rights to pre-1978 transfers, and thus the latter termination attempt was barred, Robert argued.

The district court bifurcated the case and held a jury trial only on the issue of whether the song was a work made for hire.

During that proceeding the court made two evidentiary rulings that were appealed. First, the court permitted the introduction of a transcript of a 1977 phone conversation between Brumley and one of his sons, Albert Jr. In that call, Brumley Sr. indicated that he had sold the copyrights to “I'll Fly Away.”

The second evidentiary issue concerned two newspaper articles, proffered by Robert, that suggested that Brumley was a salaried employee of Hartford Music when he wrote the song. The district court agreed that those articles satisfied the hearsay exception's ancient documents rule, but it nonetheless determined that their potential to prejudice the jury outweighed the probative value. The articles were thus excluded. Robert appealed both rulings.

Articles Should Have Gone to Jury

The appeals court upheld the ruling allowing the introduction of the transcript. That document was allowed under the residual exception to the hearsay rule found in Fed. R. Evid. 807.

“There is a lack of Sixth Circuit case law on the residual exception's trustworthiness requirement outside of the context of the Confrontation Clause, but we believe that there are a number of factors indicating that the statements from the 1977 conversation have the requisite guarantees of trustworthiness,” Judge Boyce F. Martin Jr. said.

The Sixth Circuit, however, disagreed with the district court's exclusion of the newspaper articles. The ancient documents exception to the hearsay rule, Fed. R. Evid. 803(16), permits the introduction of self authenticating publications that are over 20 years old. There is no question that the articles in question were self authenticating, and they were also over 20 years old, the court said. They were excluded based solely on the fact that the district court believed that they would be prejudicial because there was no information with respect to how the authors of the articles learned of Brumley's employment status during the relevant time period.

“First, the Sixth Circuit has never employed such a requirement in determining whether to admit evidence under the ancient documents exception. Second, it is clear where the authors acquired the relevant information,” the court said. It went on to note that the authors clearly got the information either from interviewing Brumley himself or from talking to other persons--also quoted in the articles--with knowledge of the Brumley's employment history.

“The evidentiary weight to be given to the challenged content in the articles should have been left to the discretion of the jury; therefore, the district court abused its discretion in excluding the articles from evidence,” the court held. It reversed the lower court's ruling and remanded.

Judges R. Guy Cole Jr. and Damon J. Keith joined the opinion.

Brumley & Sons Inc. was represented by Barry I. Slotnick and Jonathan N. Strauss of Loeb & Loeb, New York. The Brumley heirs were represented by Jennifer A. Lawson of Nashville, Tenn.

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