Brumley Heirs Win Fight over Rights to Old Gospel Song
Addressing the termination right given to authors and their heirs under the Copyright Act, the US Court of Appeals for the Sixth Circuit concluded that four siblings could use their right to terminate the transfer their parents made to their brother. Jackson Brumley, et al. v. Albert Brumley & Sons, Inc., et al., Case No. 15-5429 (6th Cir., May 16, 2016) (Sutton, J).
In the late 1920s, Albert Brumley composed the song “I’ll Fly Away” and sold it to a music publishing company, which copyrighted the song in 1932. Brumley later purchased the company, regained the rights to his song and started his own music publishing company, Albert E. Brumley & Sons. In 1975, Brumley and his wife, Goldie, sold Brumley & Sons to their two sons, Robert and William, assigning them full right, title and interest in the song. Albert died in 1977. Robert and William executed a new contract with Goldie in 1979, in which she assigned and transferred all rights to obtain renewals or copyrights in Albert’s works in the future to Brumley & Sons. In 1986, Robert bought out his brother’s interest, becoming the sole owner of the copyright. Goldie died in 1988.
In 2008, four of Albert’s six children served a termination notice on their brother to cut off Robert’s exclusive rights to the copyright and permit all of the siblings to equally share in the rights to “I’ll Fly Away.” The notice was promptly recorded with the US Copyright Office. The four siblings then filed a lawsuit against Robert and Brumley & Sons seeking a declaration that their termination notice was effective. Robert asserted two defenses: (1) Albert’s song was a “work made for hire,” which is ineligible for termination under 17 USC § 304(c), and (2) Goldie relinquished any termination rights in the 1979 assignment to Robert and William.
The district court ruled as a matter of law that Goldie did not extinguish the family’s termination rights in 1979. The jury ruled in favor of the four siblings on the question of a “work-for-hire.” Robert appealed.
The Sixth Circuit reversed and ordered a new trial. The second trial also resulted in a verdict for the four siblings. Robert appealed again, contesting the district court’s interpretation of the 1979 assignment.
This time the Sixth Circuit affirmed the lower court’s ruling. The Copyright Act of 1976 contains a termination provision that permits an author or his or her successors to undo an earlier grant of the author’s copyright, providing the author and successors the chance to reclaim all interests in the copyright. Section 304(c) embodies two key provisions. First, the termination right survives the author’s death, so long as the author never exercised the right. Second, agreements predating 1978 that purport to bargain away all rights in a work may not limit the termination right.
The outcome of this case hinged on contract interpretation. On appeal, the key issue was the meaning of the 1979 assignment by Goldie. The Sixth Circuit agreed with the district court that the 1979 agreement did not transfer Goldie’s termination rights. The Copyright Act requires that a termination notice state the effective date of the termination and be recorded in the Copyright Office. Goldie’s 1979 assignment did neither of these. Moreover, even if Goldie had executed a compliant notice, she lacked the right to terminate on her own. She held a 50 percent interest in the termination right, and when Albert died, her children held the other 50 percent. The act provides that in order to exercise termination rights, a person must have a total of more than one-half of the termination interest. Thus, Goldie was unable to terminate the 1975 grant in 1979 without at least one of her children joining.
The Sixth Circuit ruled that the Brumley heirs’ termination notice was effective, and each of the six siblings owns an equal share of “I’ll Fly Away.”