Brumley v. Albert E. Brumley & Sons, Inc

Addressing hearsay exceptions in the context of a copyright dispute, the U.S. Court of Appeals for the Sixth Circuit affirmed the district court’s admission of a conversation under the residual hearsay exception. The Sixth Circuit also reversed the exclusion of two old newspaper articles and held that the articles should have been admitted under the ancient-documents exception. Brumley v. Albert E. Brumley & Sons, Inc., Case No. 12-5386 (6th Cir. Aug. 15, 2013) (Martin, J.)

The Brumley siblings disputed who owned the copyright to their father’s famous gospel song “I’ll Fly Away,” which begins “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.” One group of siblings attempted to terminate an earlier copyright transfer to another sibling. Because the Copyright Act’s termination provision does not apply to works made for hire, ownership turned on whether Brumley, Sr., composed the song under a work-made-for-hire agreement. The Sixth Circuit appeal focused on the admission of two pieces of evidence: a recording and transcript of a conversation, and two old newspaper articles.

The Sixth Circuit first addressed the admissibility of the recording and transcript, which recorded a conversation between Brumley, Sr., and one of his children. Although hearsay, the recording and transcript were found to be admissible under the residual hearsay exception, Fed. R. Evid. 807. Much of the Sixth Circuit’s case law on the residual exception was inapplicable because the cases addressed the residual exception in the context of the Confrontation Clause. Nevertheless, the Sixth Circuit determined that a variety of factors militated in favor of admitting the conversation under the residual exception, some of those factors being the formality of the conversation, the conversation’s clear and unambiguous nature, and that no evidence suggested that the interlocutors were incapacitated or untruthful, all of which led the Sixth Circuit to affirm the admission of the conversation.

The Sixth Circuit then addressed the admissibility of the two old newspaper articles, one published in April 1977 and the other in July 1986. As with the recording and transcript, the admissibility of the two old newspaper articles turned on whether they fell within an exception to the hearsay rule. The district court found that the newspaper articles fell within the ancient-documents exception, Fed. R. Evid. 803(16), because the articles were more than 20 years old. However, the district court excluded the evidence under Fed. R. Evid. 403, which allows courts to exclude evidence “if its probative value is substantially outweighed by the danger of unfair prejudice.” The district court reasoned that the articles were unreliable because the articles’ authors did not indicate how they acquired the information contained within their articles.

The Sixth Circuit reversed, explaining that the Circuit does not have such a requirement as a predicate to the ancient-documents exception. Further, the court explained that the articles did in fact show how the authors obtained their information. The context of the articles showed that the authors had interviewed Brumley, Sr. One of the articles even listed its sources. Thus, the documents were found to be admissible as evidence, subject to the evidentiary weight the articles might be given, which matter was left to the discretion of the jury.