Friday, September 06, 2013

Copyright Law - Sixth Circuit - Is Hearsay Admissible To Prove An Ancient Work-For-Hire?

 Brumley v. Albert E. Brumley and Sons, Inc., --- F.3d --- (2013), 2013 WL 4105842 (6th Cir. 2013).

Songwriter Albert Brumley began writing and composing “I’ll Fly Away” in 1928 or 1929.  In 1932, the Hartford Music Co. secured the copyright by publishing it in a songbook.  In 1947, the songwriter’s eponymous Albert E. Brumley and Sons, Inc. purchased Hartford’s assets.   Songwriter said in a 1977 interview recorded with his son that he sold the rights to “I’ll Fly Away” for three dollars.   Newspaper articles from 1977 and 1986 said that the songwriter was a salaried employee of Hartford.  The district court granted a pre-trial motion in limine and admitted the songwriter’s son’s 1977 recorded interview with his father under the residual exception to the hearsay rule.  Fed. R. Evid. 807.  Also on the motion in limine, the district court then excluded the newspaper articles, even though the articles would have been admissible under Fed. R. Evid. 803(16)(ancient documents) and Fed. R. Evid. 902(6)(self-authenticating newspapers and periodicals), applying Fed. R. Evid. 403 (relevance) because the newspaper articles did not note the basis for the author’s statements therein.  With respect to the trial court’s admission of the sound recording, the Sixth Circuit noted that this was a question of first impression. The Sixth Circuit upheld the admissibility of the recording under the residual exception to the hearsay rule and concluded that the recording had the “requisite guarantees of trustworthiness”.   With respect to the newspaper articles, the Sixth Circuit reversed.  The newspaper articles were properly admissible as self-authenticating and ancient documents under Rules 902 and 803(16) of the Federal Rules of Evidence.  The evidentiary weight of the challenged articles should have been left to the discretion of the jury.

To read Judges Keith, Martin, and Cole's decision, click here.
 Copyright law, fine art and navigating the courts. All practice, no theory.Copyright Litigation Handbook (Thomson Reuters Westlaw 2012-2013) by Raymond J. Dowd
 Copyright Litigation Handbook on Westlaw

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