RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 13a0229p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

JACKSON S. BRUMLEY; ALBERT E. BRUMLEY,

JR.; THOMAS R. BRUMLEY; BILLY J.

POCKRUS; W.J. BRUMLEY; KRISTI BRUMLEY

LAXTON; MARK BRUMLEY; KERI BRUMLEY

PILCHER;

Plaintiffs-Appellees,

v.

ALBERT E. BRUMLEY & SONS, INC.;

INTEGRATED COPYRIGHT GROUP, INC.;

ROBERT B. BRUMLEY,

Defendants-Appellants.

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No. 12-5386

Appeal from the United States District Court

for the Middle District of Tennessee at Nashville.

No. 3:08-cv-01193—Aleta Arthur Trauger, District Judge.

Argued: March 15, 2013

Decided and Filed: August 15, 2013 

Before: KEITH, MARTIN, and COLE, Circuit Judges.

_________________

COUNSEL

ARGUED: Barry I. Slotnick, LOEB & LOEB LLP, New York, New York, for

Appellants. Jennifer A. Lawson, LAWSON LAW OFFICE, PLLC, Nashville,

Tennessee, for Appellees. ON BRIEF: Barry I. Slotnick, Jonathan N. Strauss, LOEB

& LOEB LLP, New York, New York, for Appellants. Jennifer A. Lawson, LAWSON

LAW OFFICE, PLLC, Nashville, Tennessee, for Appellees.

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No. 12-5386 Brumley, et al. v. Albert Brumley & Sons, Inc., et al. Page 2

_________________

OPINION

_________________

BOYCE F. MARTIN, JR., Circuit Judge. “Some glad morning when this life is

o’er / I’ll fly away / To a home on God’s celestial shore / I’ll fly away”—these are the

opening lines of Albert Brumley, Sr.’s hit gospel song, “I’ll Fly Away.” Unfortunately,

Brumley Sr.’s death would lead to a familial dispute concerning ownership of the Song’s

copyright.

In 1975, Brumley Sr. assigned his interests in the Song’s copyright to his sons

Robert and William, and in 2006, Brumley Sr.’s four other children sought to terminate

the 1975 Assignment. Robert refused to recognize the termination as valid, and the

Brumley heirs sued Robert in district court. Robert 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. The district

court conducted a jury trial on the statutory-author issue, and the jury determined that

Brumley Sr. was indeed the statutory author of the Song. Following the jury trial, the

district court considered Robert’s legal challenge to the Brumley heirs’ exercise of their

termination rights and held that the assignment by Brumley Sr.’s widow did not prevent

the Brumley heirs from exercising their termination rights.

Robert appeals the jury determination as well as the district court’s legal

determination. Regarding the jury trial, Robert appeals two evidentiary rulings that the

district court made prior to the trial: (1) it admitted the transcript and recording of a

1977 conversation between Brumley Sr. and Brumley, Jr., one of the plaintiffs; and (2) it

excluded two articles discussing Brumley, Sr.’s employment status at the time that he

composed the Song. For the following reasons, we AFFIRM the district court’s

evidentiary ruling concerning the 1977 conversation, we REVERSE the district court’s

evidentiary ruling regarding the two articles, and REMAND the case for further
No. 12-5386 Brumley, et al. v. Albert Brumley & Sons, Inc., et al. Page 3

proceedings. We refrain from reaching Robert’s appeal of the district court’s

determination that the Brumley heirs validly exercised their termination rights.

I.

Brumley, Sr. began writing and composing “I’ll Fly Away” in 1928 or 1929, and

on September 15, 1932, the Hartford Music Company secured the initial copyright in the

Song by publishing it in a songbook titled, “The Wonderful Message.” In the 1940s,

Brumley, Sr. formed a music-publishing company, Albert E. Brumley & Sons, to hold

title to and exploit his own copyrights. In 1947, he purchased all of Hartford’s assets,

including the copyright in the Song. Brumley, Sr. renewed the copyright registration for

the Song in 1960, and he continued to hold full rights in the Song through Brumley &

Sons.

On December 18, 1975, Brumley, Sr. sold his interest in Brumley & Sons to

William and Robert for $100,000. On December 31, 1975, Brumley, Sr. and his wife,

Goldie, also executed a Bill of Sale that purported to sell personal property and an

“Attached list of Copyright songs,” to William and Robert. The list of songs does not

appear in the record; nonetheless, it is undisputed that, as part of those transactions,

Brumley, Sr. conveyed the publishing and exploitation rights in the Song to William and

Robert. On November 15, 1977, Brumley, Sr. died, survived by Goldie and their six

children. Brumley, Sr. bequeathed all of his property, including his interests in any

copyrights, to Goldie. On May 17, 1979, Goldie executed another Bill of Sale, wherein

she maintained that she was the “sole and rightful owner” of all of Brumley, Sr.’s songs

and she purported to “grant, sell, assign, and transfer” to Brumley & Sons her rights in

Brumley, Sr.’s songs for $1.00. The Agreement also conveyed to Brumley & Sons the

rights to renew copyrights and “all rights to obtain renewals or copyrights in the future

upon Works written or composed by [Brumley Sr.].” In 1986, Robert bought out

William’s share of Brumley & Sons for $240,000 plus interest, leaving Robert as the

sole owner. Goldie died on July 10, 1988.

On or about April 14, 2006, the other four Brumley children (Jackson S.

Brumley, Albert E. Brumley, Jr., Betty Brumley Pockrus, and Thomas Brumley)
No. 12-5386 Brumley, et al. v. Albert Brumley & Sons, Inc., et al. Page 4

delivered a timely Notice of Termination of Transfers and Licenses to Brumley & Sons,

intending to terminate the 1975 transfer of rights in the Song from Brumley, Sr. to

William and Robert. The effective date of the Termination Notice purports to be April

14, 2008, and the U.S. Copyright Office recorded the Termination Notice on July 13,

2006. Robert Brumley’s efforts to resist the Termination Notice form the basis of this

lawsuit.

On December 16, 2008, the Brumley heirs sued Robert Brumley, Brumley &

Sons, and Integrated Copyright Group, Inc. after Robert’s refusal to recognize the

validity of the Termination Notice. Currently, the Brumley heirs consist of Brumley

Sr.’s surviving children—Jackson S. Brumley and Albert E. Brumley, Jr.—and the

surviving heirs of his deceased children—Thomas Brumley’s surviving spouse, Betty

Brumley Pockrus’s surviving spouse, and William Brumley’s four surviving children.

At the district court, Robert argued that the Termination Notice was invalid for two

reasons. First, he argued that Goldie exercised her termination rights by assigning her

rights in the 1979 Bill of Sale, preventing the Brumley heirs from later exercising their

termination rights. Section 304(d) of the Copyright Act provides that heirs can only

exercise termination rights on a pre-1978 transfer one time. 17 U.S.C. § 304(d).

Second, Robert claimed that Brumley, Sr. was an employee of the Hartford Music

Company at the time that he created the Song and that the Song was a “work made for

hire.” The Copyright Act’s termination provisions do not apply to works made for hire.

17 U.S.C. § 304(c).

Before the trial, the district court made evidentiary rulings related to the workmade-for-hire issue that are pertinent to this appeal and our decision today. First, Robert

filed a motion in limine to exclude from evidence a recording and transcript of a 1977

conversation between Brumley, Sr. and Brumley, Jr. The conversation contains the

following exchange:

Brumley, Sr.: That’s where I got started in the Hartford – that’s where I

got started in the Hartford Musical Institute, which is defunct now.

Albert, Jr.: And which you own now, the old Hartford copyrights?
No. 12-5386 Brumley, et al. v. Albert Brumley & Sons, Inc., et al. Page 5

Brumley, Sr.: Yea, I sold some of the songs including “I’ll Fly Away”

and two others for three dollars.

The district court denied Robert’s motion and admitted the recording and transcript into

evidence. During the pretrial conference on the motion, the district court acknowledged

that the conversation was hearsay, but nevertheless admitted it into evidence pursuant

to the residual exception to the hearsay rule found in Federal Rule of Evidence 807.

Second, the Brumley heirs filed a motion in limine seeking to exclude from

evidence a number of newspaper and magazine articles, among other things, as

inadmissible hearsay. Robert argued that the district court should admit the articles

under the “ancient documents” exception to the hearsay rule found in Federal Rule of

Evidence 803(16). The district court granted the motion in part, excluding the articles

from evidence. Two of the articles—Brumley is Ozark’s Country/Gospel Songmaster,

by Paul Stubblefield, Music City News, April 1977 and Albert E. Brumley Folk

Composer, by Bill Malone, Bluegrass Unlimited, July 1986—provided statements that

Brumley, Sr. was a salaried employee of Hartford during the time that he wrote the

Song.

The district court bifurcated the trial. There was a jury trial from November

16–18, 2010, solely on the issue of whether the Song was a work made for hire. At the

close of the Brumley heirs’ case, Robert asked the district court to rule in his favor on

the work-made-for-hire issue as a matter of law, but the district court denied the motion.

The jury concluded that Brumley, Sr. was the statutory author of the Song, meaning that

the Song was not a work made for hire as that term is used in section 304(c) of the Act

and that Brumley, Sr.’s heirs have termination rights under section 304(d).

Following the jury trial, remaining for the district court’s consideration was

Robert’s legal challenge to the Brumley heirs’ Termination Notice on the grounds that

Goldie’s 1979 Bill of Sale constituted the one and only legitimate exercise of

termination rights. The district court held that Goldie’s 1979 assignment did not

constitute an exercise of termination rights and it recognized the Brumley heirs’

Termination Notice as valid. Robert filed this interlocutory appeal, seeking this court’s
No. 12-5386 Brumley, et al. v. Albert Brumley & Sons, Inc., et al. Page 6

review of the district court’s determination regarding the validity of the Termination

Notice. Robert also seeks review of the district court’s aforementioned evidentiary

rulings, and of the district court’s denial of his motion for judgment as a matter of law.

II.

We begin by addressing Robert’s challenge to the district court’s evidentiary

rulings. The trial court’s evidentiary rulings are reviewed for abuse of discretion.

United States v. Taplin, 954 F.2d 1256, 1258 (6th Cir. 1992). Reversal is appropriate

when the trial court “applies the incorrect legal standard, misapplies the correct legal

standard, or relies upon clearly erroneous findings of fact.” United States v. Martinez,

430 F.3d 317, 326 (6th Cir. 2005) (citation and internal quotation marks omitted).

The Brumley heirs sought to introduce the recording and transcript of a

1977 conversation between Brumley, Sr. and Albert Brumley, Jr. During the

conversation, Brumley, Sr. claims that he sold the Song to Hartford for three dollars.

Robert sought to exclude the recording and transcript as hearsay. The district court

admitted the evidence on the grounds that it fell under the residual hearsay exception

found in Rule 807. Rule 807 allows the admission of a hearsay statement that does not

fall under the exceptions to hearsay found in Rules 803 and 804 if the statement meets

four criteria: (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. Fed.

R. Evid. 807; United States v. Gomez-Lemos, 939 F.2d 326, 329 (6th Cir. 1991). Robert

argues that the district court erred in admitting the recording and transcript because the

conversation lacked the circumstantial guarantees of trustworthiness equivalent to those

in the enumerated hearsay exceptions.

In support of his argument, Robert relies on language from the Supreme Court’s

decision in Idaho v. Wright, 497 U.S. 805 (1990). Specifically, Robert says that the
No. 12-5386 Brumley, et al. v. Albert Brumley & Sons, Inc., et al. Page 7

Supreme Court has stated that the theory underlying the federal hearsay exceptions is

that “if the declarant’s truthfulness is so clear from the surrounding circumstances that

the test of cross-examination would be of marginal utility, then the hearsay rule does not

bar admission of the statement at trial.” Wright, 497 U.S. at 820. However, the Supreme

Court made this statement in the context of a discussion of the “particularized guarantees

of trustworthiness” required under the Confrontation Clause. Id. at 814–15.

Incriminating statements that are admissible under exceptions to the hearsay rule are not

admissible under the Confrontation Clause unless the statements meet particularized

guarantees of trustworthiness. Id. The Supreme Court’s requirement that the

truthfulness of a statement be so clear that the test of cross-examination be of marginal

utility is specific to the Confrontation Clause; thus, the requirement is inapplicable in

this case.

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 numbers of factors indicating that the statements from the

1977 conversation have the requisite guarantees of trustworthiness. First, the statements

should be considered more reliable than not given that Brumley, Sr. and Brumley, Jr. are

father and son and not strangers. Second, there is no indication that Brumley, Sr. lacked

capacity at the time that he gave the statement. One may argue that Brumley, Sr.’s

memory might have been impaired due to the lapse of time between the Song’s

publication and the statement, but it is just as reasonable to assume that Brumley, Sr.

would have accurately recalled the circumstances surrounding the creation of his most

successful song despite the lapse of time. 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. The

district court did not abuse its discretion and err in admitting into evidence the

statements from and transcript of the 1977 conversation.
No. 12-5386 Brumley, et al. v. Albert Brumley & Sons, Inc., et al. Page 8

The Brumley heirs sought to prevent Robert from introducing into evidence two

articles: 1) Paul Stubblefield’s article, Brumley is Ozark’s Country/Gospel Songmaster,

published in the April 1977 edition of Music City News; and 2) Bill Malone’s article,

Albert E. Brumley Folk Composer, published in the July 1986 edition of Bluegrass

Unlimited. Both articles claimed that Brumley, Sr. was a salaried employee of Hartford

at the time that he wrote the Song. Robert sought to introduce the evidence under the

“ancient documents” exception to the hearsay rule. See Fed. R. Evid. 803(16).

As an initial matter, the Brumley heirs conceded that the articles are selfauthenticating “newspapers and periodicals” pursuant to Federal Rule of Evidence

902(6). The district court found that the statements fall within the ancient documents

exception because they are more than twenty years old and are authenticated. See Fed.

R. Evid. 902(6). The district court also acknowledged that “the content of the document

is a matter of evidentiary weight left to the sole discretion of the trier of fact,” and,

therefore, the factual accuracy of the statement is not pertinent when considering

whether the hearsay exception applies. United States v. Kalymon, 541 F.3d 624, 633

(6th Cir. 2008). Finally, the district court noted that the challenged statements within

the articles do not contain a potential “hearsay within hearsay” problem because the

statements are simply the assertions of the articles’ authors and do not quote or attribute

statements to anyone else.

Still, the district court excluded the evidence based on its discretion under Rule

403, which states that otherwise relevant and admissible evidence may be excluded “if

its probative value is substantially outweighed by the danger of unfair prejudice,

confusion of the issues, or misleading the jury, or by considerations of undue delay,

waste of time, or needless presentation of cumulative evidence.” Fed. R. Evid. 403. The

district court relied on an evidence treatise to support its determination that the

circumstances must show that Stubblefield and Malone could have had personal

knowledge of Brumley, Sr.’s employment relationship with Hartford. The district court

found that the articles did not meet this standard because “[t]here is no clear indication
No. 12-5386 Brumley, et al. v. Albert Brumley & Sons, Inc., et al. Page 9

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.”

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. 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. Finally, the district

court’s determination that there is an absence of need for the evidence is not well

supported. The district court points to other evidence on the issue, including excerpts

from Brumley, Jr.’s book, I’ll Fly Away: The Life of Albert E. Brumley, which stated that

Brumley, Sr. served as a salaried staff writer at Hartford at the time that he wrote the

Song. Brumley, Jr., however, testified at trial that the statement in his book was

erroneous. Moreover, the 1977 interview between Brumley, Sr. and Brumley, Jr. is the

only source, other than the articles, that involves commentary from parties with personal

knowledge of Brumley, Sr.’s employment status with Hartford at the time that he wrote

the Song. 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.

Because we find that the district court erred in excluding the articles from

evidence, we refrain from reaching the remaining issues that Robert raised on appeal.

We AFFIRM the district court’s introduction of the 1977 conversation into

evidence, REVERSE the district court’s exclusion of the Stubblefield and Malone

articles, and REMAND for further proceedings.