Admission by a Party Opponent Grounds Royalties from “I’ll Fly Away”
By Few songs have transcended time and crossed musical genres as effortlessly as Albert E. Brumley Sr.’s depression-era composition “I’ll Fly Away.” Originally composed as a gospel tune in 1928, the song has since been performed by countless artists, including Hank Williams, Johnny Cash, Alan Jackson, Alison Krauss, Bob Dylan, and even Kanye West. With so many royalties at stake, it was only a matter of time before the song wound up at the center of a copyright dispute, and that is exactly what happened.
In Brumley v. Albert E. Brumley & Sons, Inc., 2010 WL 2735769 (M.D.Tenn. Jul. 9, 2010), the primary issue was whether Brumley created the famous tune as an independent songwriter or as a “work for hire” at the direction of the Hartford Music Company (Hartford). Evidence of Brumley’s employment status at the time the song was written, nearly 80 years ago, proved difficult to find for the parties in the case. Hartford offered several magazine articles (including one from 1931) that stated that Brumley wrote the song while employed by Hartford as a $12.50 a month staff writer. They also introduced a Brumley biography that described the same account.
The Court excluded the magazine articles because there was no indication of where the authors had acquired their employment information. The Court admitted into evidence, however, the biography’s passages about Brumley’s work history, even though they cited no sources either. Why? One of the plaintiffs in the case, Albert E. Brumley Jr. (Brumley’s son), had co-authored the book. Thus, the passages of the book that supported Hartford’s work-for-hire argument were held to be admissions by a party opponent.
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