Brumley v. Albert Brumley & Sons, Inc., No. 15-5429 (6th Cir. May 16, 2016)
Four of six children of the author of the gospel song “I’ll Fly Away” successfully exercised their right to terminate the assignment of the song’s copyright to another one of their brothers, holds the Sixth Circuit. The case centered on the 1976 Copyright Act’s termination right that allows an author to undo a prior transfer of his copyright and recapture all interests in the copyright for himself.
In this case, Albert Brumley composed the song “I’ll Fly Away” (a gospel spiritual) in the late 1920s and owned the copyright through a publishing company. In 1975, the publishing company was sold to two of Brumley’s sons, assigning and transferring all right title and interest in the song. Brumley died in 1977, and in 1986 one of the sons bought out his brother’s interest. In 2008, a sibling spat arose over the royalties for the song (approx. $300,000/year), and four of Brumley’s children served and filed a termination notice to share in the lucrative rights. In December 2008, the four siblings filed a declaratory judgment action seeking a declaration that their termination notice was effective. The owning brother (Robert) responded with two defenses, one of which – whether the song was a work made for hire – was tried before a jury, who found in favor of the four siblings.
On appeal, the Court found that the termination notice was effective. Because the rights were transferred before 1978, the termination provisions in section 304 of the Copyright Act govern. When Brumley’s wife passed away, each of his children held a one-sixth interest in the termination right. Accordingly, the four siblings could exercise two-thirds of the termination interest with respect to the pre-1978 assingment. Further, a post-transfer (1979) second “bill of sale and assignment” did not bargain away the wife’s termination replace and did not replace the 1975 contract. The Court found that it should not lightly assume that a contract bargains away the centerpiece feature of the 1976 act.