I’ll Fly Away, the gospel standard written by onetime Oklahoma cotton-picker Albert Brumley, has been updated, remade and re-mastered by artists for decades now, taking wing as one of the most recorded songs of its genre. But the question of exactly who might profit from the work’s considerable popularity has been tossed in the air anew, remanded recently by the U.S. Court of Appeals for the Second Circuit to a lower court for reconsideration of issues about evidence that may lead to a decision that sticks about the song’s copyright ownership among Brumley’s heirs.
And while his composition may derive some of its power in performance by its fervent simplicity, Brumley, the record shows, played his own part in launching a legal tangle that traces to the Seventies, and involves some classic who said what and who meant what, all to be figured long after the fact.
In the latest action in this running dispute, Robert Brumley, one of the writer’s sons, asserts in an appeal that his father, Albert, in 1975 assigned his interests in I’ll Fly Away to him and his brother, William. Robert claims that shortly thereafter, in a 1979 Bill of Sale, Goldie, the writer’s widow, assigned her interests, as well.
In 2006, however, the writer’s four other children sought to terminate the assignment of the song. In a December, 2008, hearing, Robert argued that their termination notice was invalid for two reasons: (1) Goldie had terminated her rights to the song when she assigned her rights to him in the 1979 Bill of Sale; this, thus, prevented Brumley’s heirs from later exercising their termination rights; and (2) Albert was an employee at Hartford Music Co. where the song was written and it was created as a part of his job — in other words, it was a work made for hire, in which termination provisions do not apply.
The federal court in Nashville split legal consideration of the matters, with jurors there finding that Albert Brumley was the song’s author and it was not a work for hire; the U.S. district court also ruled that Goldie’s action did not affect the heirs’ exercise of termination rights. During the trial, the court barred Robert from admitting evidence he said would prove his father was a salaried employee of Hartford when he wrote I’ll Fly Away; the disputed materials include a recorded interview, in which Albert Brumley discusses his time and relationship with Hartford Music, as well as published Seventies interviews in which he discussed those topics.
The appellate court in Cincinnati, which determined there was no basis for excluding this evidence and said the jury should have been allowed to see it as part of its deliberations, remanded the case to the lower court for further consideration — without the higher court making any ruling, for example, on the heirs’ termination rights, if any, and the work-for-hire question involving Albert Brumley. All right, counselors, race to those texts to look up the hearsay rules and the cases on the “ancient documents exception.”
Though it’s unclear the exact stakes involved, reports on information from court files indicate that between 2004 and 2009’s third quarter, Brumley’s hit generated $1.4 million in royalties; Goldie sold her interest for $1, Albert says in one of the disputed items of evidence that he sold his song “and two others for $3,” and Robert bought out his brother William for $240,000
If your fond childhood memories don’t include crooning I’ll Fly Away in your church’s choir, hum along with this recent movie-soundtrack version: