United States: Sixth Circuit Rules In Favor Of Songwriter's Heirs In Copyright Termination Decision In Jackson Brumley et al. v. Albert Brumley & Sons Inc. et al.

In its May 16, 2016 decision in Jackson Brumley et al. v. Albert Brumley & Sons Inc. et al., the Sixth Circuit expressed skepticism of the Second Circuit's and Ninth Circuit's interpretation of the 304(c) termination provisions of the Copyright Act, despite ultimately deciding the case on an issue of contractual interpretation.  The Court handed down a decision respecting the termination rights of songwriter Albert Brumley's heirs in the famous gospel song "I'll Fly Away," concluding that those termination rights had not been bargained away via a contract that did not specifically address termination.  Although the outcome of the case hinged on contract interpretation, rather than the specifics of the 1976 Copyright Act's termination provisions under 304(c), opinion author Judge Sutton took the time to express skepticism of previous circuit court interpretations of the 304(c) termination provisions of the Copyright Act.

The 1976 Copyright Act replaced the copyright renewal provisions of the 1909 Copyright Act with termination provisions.  Under the "renewal" regime of the 1909 Act, after an initial 28 year copyright period, an author had the exclusive right to a second 28 year renewal term.  After finding that authors frequently bargained away their renewal term, Congress sought, through the 1976 Copyright Act, to rectify this situation with termination rights.   Termination rights permit an author to undo a prior transfer of his copyright and reclaim all interests in the copyright.  For copyrights transferred after 1978, termination can occur between thirty-five and forty years after transfer.  For copyrights transferred before 1978, termination can occur between fifty-six and sixty-one years after the copyright was obtained.  Of further note, according to the language of the statute, post 1978 grants by someone other than the author of the work cannot be terminated.  The 1998 Copyright Term Extension Act provided an additional termination window for any copyright whose window had expired at the time of enactment.

Both the '76 Act, and the later 1998 Copyright Act that extended copyright terms provide that "Termination of the [copyright] grant may be effected notwithstanding any agreement to the contrary, including an agreement to make a will or to make any future grant."  Furthermore, Termination Rights accrue to the heirs of the original authors according to the provisions of §304(c)(2).  If a deceased author has surviving children and/or grandchildren, they receive half of the termination interest while a surviving widow receives the other half.  If neither the author or the widow survive, then the entire termination interest is held by the children and grandchildren on a per stirpes bases.  A majority termination interest is required for exercise of the right.

Albert Brumley wrote the gospel song "I'll Fly Away" in the 1920s and sold it to a music publishing company, which obtained a copyright in 1932.  Brumley subsequently regained the copyright by purchasing the publishing company.  He later started a publishing company of his own called "Albert E. Brumley & Sons," which he and his wife, Goldie, sold to two of his six children, William and Robert, in 1975.  Through this sale, all of Albert and Goldie's "right title and interest" in "I'll Fly Away" was transferred to Robert and William.  After Albert's death in 1977, Robert and William executed a new contract with Albert's widow Goldie that "assigned and transferred . . . all rights to obtain renewals or copyrights in the future upon Works written or composed by . . . Albert E. Brumley" to the Brumley & Sons publishing company.  Robert later became the sole owner of the copyright to "I'll Fly Away" after buying out William's interest in the publishing company.

In 2008, at which point the song was generating hundreds of thousands of dollars a year in royalties, the four other Brumley children – Albert Jr., Betty, Jackson, and Thomas – attempted to exercise their termination rights to end Robert's exclusive copyright and allow all of the siblings to share the copyright equally.  This attempt resulted in a lawsuit seeking a declaration that the termination notice was effective.  The case came to the Sixth Circuit on appeal by Robert challenging the district court's decision that the termination notice was indeed effective.

The key issue on appeal was the meaning of the 1979 assignment by Goldie (who passed away in 1988) to the Brumley & Sons Publishing Company.  The Court agreed with the district court's ruling that the '79 agreement did not transfer Goldie's termination rights to the publishing company.  First, the Court stated, the '79 assignment could not have been an implicit exercise of Goldie's termination right because she held only half (i.e., less than a majority) of the termination interest at the time and because the assignment did not follow the statutorily required provisions of notice and registration with the copyright office.  The Court further found that the '79 assignment, which mentioned only renewal rights, could not have bargained away termination rights without explicit terms to that effect.

Robert also tried to rely on cases in which a pre-1978 transfer of right by the author was superseded by a post-1978 transfer of right by the author's successor in interest,  thereby extinguishing any termination interests.  The Court distinguished the instant case from the decisions by the Ninth Circuit in Milne ex rel. Coyne v. Stephen Slesinger, Inc. and the Second Circuit in Penguin Group (USA) Inc. v. Steinbeck because, in those cases, the post-1978 transfers explicitly superseded or revoked the prior contracts. 430 F.3d 1036 (9th Cir. 2005) and 537 F.3d 193 (2d Cir. 2008).  In contrast, the '79 agreement in the present case makes no reference to the '75 assignment, and, the Court concluded, cannot therefore be interpreted to revoke or supersede that assignment.

Accordingly, the Court ruled that the Brumley sibling's termination notice was effective, and that the copyright interests to "I'll Fly Away" should revert to all of the Brumley siblings in equal shares.

Although this decision was founded in an interpretation of the '79 transfer from Goldie to Brumley & Sons, Judge Sutton seized the opportunity to express mild skepticism of the Milne and Steinbeck decisions.  In these two cases, a post-1978 agreement between the author's successor in interest and the original grantee was used to revoke a pre-1978 agreement.  Because the pre-1978 agreements had been revoked, the courts said, they could not give rise to termination rights.  Furthermore, because the post-1978 agreements were not with the author, these also could not give rise to termination rights.  Thus, the post-1978 agreements had the effect of extinguishing all termination rights.  In both of these cases, the entity that effected the post-1978 copyright grant did not hold a majority termination interest.  In the Milne case, the relevant entity was a trust benefitting Christoper Milne, the sole termination interest holder at the time.  But in the Steinbeck decision, the author's wife, Elaine Steinbeck, who held the copyright interests and entered into the post-1978 agreement, was able to unilaterally extinguish the termination interests of John Steinbeck's children.  The issue was not raised in the case, but Judge Sutton appears to express regret at not being able to opine on whether agreements such as those in the Milne and Steinbeck cases would amount to impermissible "agreements to the contrary" unable to affect termination rights.  Sutton notes that "[w]hile the caselaw on this issue appears to be one-sided, it deserves mention that Nimmer on Copyright, now a father-son treatise that seems to have cornered the market on copyrights for works about copyright law, takes a contrary view" (citing to M. Nimmer & D. Nimmer, 3 Nimmer on Copyright § 11.07[A] (2015); see also Peter S. Menell & David Nimmer, Pooh-Poohing Copyright Law's 'Inalienable' Termination Rights, 57 J. Copyright Soc'y U.S.A. 799, 824–25 (2010)).  Future decisions by the Sixth Circuit that address this issue directly may therefore be of interest.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Events from this Firm
18 Oct 2017, Seminar, San Francisco, United States

Please join us for Sheppard Mullin's Labor & Employment Law Update & Happy Hour Seminar Series. 2017 presents significant developments in California labor and employment laws that will affect the way you run your day-to-day business operations. We will provide analysis and insight on these new laws, as well as offer practical advice and helpful tools for employers to protect their organizations from liability in the workplace.

18 Oct 2017, Seminar, California, United States

Come learn the latest about Labor Law Updates, Healthcare Reform Updates, Federal and State Tax-related issues/credits, Unemployment and Disability Insurance-related issues. Meet face-to-face with Sheppard, Mullin, Richter & Hampton LLP attorneys, government representatives, and other experts in workshops that will educate you on critical and timely issues.

18 Oct 2017, Seminar, San Diego, United States

Data breaches have a devastating impact on business and personal privacy. The Equifax breach is the most recent example of hackers taking advantage of corporate vulnerability. Shows like Mr. Robot have surged in popularity as our curiosity with hacking and cybersecurity continues to grow.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.