Court wants hearings in dispute over gospel song
By BRETT BARROUQUERE Associated Press August 15, 2013 2:48PM
A long-running family dispute over a popular gospel song won’t just fly away.
The U.S. 6th Circuit Court of Appeals on Thursday ordered more hearings in the fight over who owns the rights and royalties to Albert Brumley Sr.’s classic “I’ll Fly Away.”
Judge Boyce Martin wrote that a trial judge erred in excluding two articles quoting Brumley about where he worked when the song was written and ordered further proceedings in the case. Martin also concluded that U.S. District Judge Aleta Trauger properly allowed a recording of an interview between Brumley and one of his sons to be played at a 2011 trial.
“The evidentiary weight to be given to the challenged content in the articles should have been left to the discretion of the jury,” Martin wrote.
The dispute, which has been going on for five years, stems from a disagreement between Robert Brumley and two of his siblings and their children. The children filed a lawsuit against Robert Brumley, arguing that they should be able to get a share of the royalties from the song. They asked the court to terminate the copyrights to the song, which was being held by a company owned by Robert Brumley.
“I’ll Fly Away” was featured in the movie “Oh Brother, Where Art Thou” and is one of the most recorded gospel songs of all time. “I’ll Fly Away” has been recorded and performed by artists from many different types of music genres, including rapper Kanye West, Johnny Cash, blues and jazz singer Etta James, and Christian band Jars of Clay.
The song has generated about $1.4 million in royalties between 2004 and the third quarter of 2009, the last years referenced in court records.
Albert Brumley Sr. began writing the song in 1928 or 1929 while picking cotton on his parent’s Oklahoma farm. He copyrighted the song and renewed the copyright in 1960. In between, he sold the song to Hartford Music Company, then bought the copyrights of Hartford Music a few years later.
Brumley ultimately sold the publishing and exploitation rights to “I’ll Fly Away” along with his publishing company, Brumley & Sons, two of his children, William and Robert, for $100,000, in 1975. The elder Brumley died in 1977, leaving his wife Goldie and their six children as survivors.
Goldie Brumley became the sole inheritor of all his property, including any interest in any copyrights. She sold her interest in the music to Brumley & Sons for $1 in 1979. Seven years later, Robert Brumley bought out his brother for $240,000 and took sole possession of the musical inventory. Goldie Brumley died in 1988.
In April 2006, Brumley’s four other children sought to terminate the 1975 transfer of rights from their father to their brother. Robert Brumley objected, sparking the lawsuit between family members.
Robert Brumley says the family no longer has the legal right to terminate the transfer agreement and that Albert Brumley Sr., worked for a company called Hartford Music Company at the time he penned the song. That made “I’ll Fly Away” a work-for-hire, so the family couldn’t challenge the transfer of the tune’s rights, Robert Brumley claimed.
Trauger admitted into evidence the transcript of a conversation between the elder Brumley and his son, Robert. During the conversation, Albert Brumley talked about starting out with Hartford Music and later purchasing the company’s copyrights.
“Yea, I sold some of the songs including ‘I’ll Fly Away’ and two others for three dollars,” Albert Brumley Sr. said.
The judge also excluded two articles quoting Brumley as saying he was a salaried employee of Hartford Music at the time he wrote “I’ll Fly Away.”
Martin, who opened his nine-page opinion by quoting the opening lines of the song, found that exclusion in error. Martin found the articles, one of which came from an interview with Brumley, relevant to the case.
Martin also concluded, that, because the interview between Brumley and his son was recorded, it is likely the songwriter gave his statements extra thought and consideration.
“There is no indication that Brumley Sr. lacked capacity at the time he gave the statement,” Martin wrote.
Jurors had to decide whether the older Brumley composed the song on his own or if he did it while working as a staff writer by a company that has since been purchased by Robert Brumley.
The jury found that Albert Brumley wrote the song on his own. The finding means that the plaintiff family members are entitled to inherit rights to the song.
Trauger ordered the family members into mediation so they could decide how to split the royalties and who will control them. Robert Brumley appealed the evidentiary decisions.
Ultimately settlement talks failed, prompting Robert Brumley to pursue the appeal.
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