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
Friday, September 06, 2013
Copyright Law - Sixth Circuit - Is Hearsay Admissible To Prove An Ancient Work-For-Hire?
Labels: albert brumley, copyright litigation, Evidence, Hearsay, motion in limine, Musical Works, Relevance, Residual Exception To Hearsay Rule, Sixth Circuit, Work-for-Hire Doctrine
Partner in law firm Dunnington Bartholow & Miller LLP in New York City litigating in federal and state courts and arbitrations. Experienced trial and appellate practitioner. Author: Copyright Litigation Handbook (Thomson Reuters 2018-2019). The New York Law Journal called it "an indispensable guide". Board of Directors of the Fordham Law Alumni Association, former General Counsel & Director Federal Bar Association, FBA Chair of the Circuit VPs, ViP for Second Circuit. Member Board of Governors, National Arts Club. President, Network of Bar Leaders (2013-2014). Attorney advertising disclaimer - prior results do not guarantee success. The statements and opinions voiced here are my own and not of my law firm.