Brumley et al v. Albert E. Brumley & Sons, Inc. et al

Filing 164

STIPULATION & JOINT MOTION TO CERTIFY ORDER FOR AN INTERLOCUTORY APPEAL marked: IT IS SO ORDERED. Signed by District Judge Aleta A. Trauger on 2/6/12. (xc: USDC Financial Department & 6CCA via email)(af) Modified on 2/6/2012 (af).

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

JACKSON S. BRUMLEY, ALBERT E.
BRUMLEY, JR., ROLENE BRUMLEY, )
BETTY BRUMLEY POCKRUS, W.J.
BRUMLEY, KRISTI BRUMLEY LAXTON,
MARK BRUMLEY, AND KERI BRUMLEY
PILCHER,

)

)
)
)
)
)
PLAINTIFFS,
)
)
v.
)
CASE NO. 3:08-1193
)
ALBERT E. BRUMLEY & SONS, INC.,
)
INTEGRATED COPYRIGHT GROUP, INC., )
AND ROBERT B. BRUMLEY,
)
)
DEFENDANTS.
)
______________________________________________________________________________
STIPULATION AND JOINT MOTION TO CERTIFY
ORDER FOR AN INTERLOCUTORY APPEAL
______________________________________________________________________________
IT IS HEREBY STIPULATED AND AGREED by and between the undersigned
attorneys for the parties herein that Defendants’ Motion to Certify Order for an Interlocutory
Appeal, dated as of July 22, 2011, be granted by this Court upon the following agreed terms and
conditions:
1. Defendants will escrow any net income (less standard administration fees),
directly attributable to post-termination licenses from all sources in the United States with
respect to the musical composition “I’ll Fly Away” (the “Composition”), initially received by
Defendants or their agent on or after January 1, 2012 (“the Post-Termination Income”).

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2. Defendants shall retain all non-Post-Termination Income, including any income
subject to the so-called derivative works exception as set forth in Section 304(c)(6)(A) of the
Copyright Act. In the event that Plaintiffs disagree with Defendants’ determination that any
particular income is subject to the derivative works exception, they shall notify Defendants in
writing, and Defendants shall respond, in writing, within thirty days. If the parties cannot
resolve the dispute concerning whether such income is subject to the derivative works exception,
either party shall be permitted to raise the issue with this Court. To the extent necessary, the
parties consent to the District Court retaining jurisdiction to resolve such disputes during the
pendency of the interlocutory appeal.
3. Defendants shall maintain during the pendency of this action, a bond heretofore
obtained in favor of Plaintiffs in the sum of One Hundred Thousand Dollars ($100,000.00).
Defendants agree that in the event of a final adjudication in favor of Plaintiffs, Defendants shall
cooperate with Plaintiffs to enable the timely payment of the bonded amount.
4. Defendants shall continue to escrow the Post-Termination Income until such time
as there is a final adjudication of the ownership of the Composition in the United States. For
purposes of this stipulation, “final adjudication” means a final order of a court that is neither
susceptible of further appeal or to which no appeal has been taken. For purposes of clarification,
if there is a final adjudication on all questions of ownership of the composition (including final
resolution of all matters pertaining to the validity of Plaintiffs’ copyright termination and
Defendants’ claims that the composition was prepared as a work made for hire), but issues of
damages remain to be resolved, Defendants shall cease escrowing the Post-Termination Income
(provided that any income escrowed prior to final adjudication of ownership issues shall remain
in escrow until a final resolution on the question of damages).
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5. During the pendency of this action, until final adjudication of the ownership of the
Composition in the United States, ClearBox Rights shall exclusively administer the copyright in
the Composition and in this capacity shall:
(a)

maintain the escrow of the Post-Termination Income in a separate interest

bearing account;
(b)

provide Plaintiffs and Defendants with a quarterly accounting with respect

to the exploitation and revenues derived by “I’ll Fly Away” relating to any Post-Termination
Income;
(c)

grant and issue licenses in the ordinary course of business. In this regard,

the parties agree and acknowledge that ClearBox Rights and Defendants retain the right to grant
and issue licenses with respect to non-United States and/or worldwide uses of the Composition,
and with respect to uses of the Composition subject to the derivative works exception as set forth
in Section 304(c)(6)(A) of the Copyright Act. With respect to licenses issued for the United
States only or for the United States portion of worldwide licenses (and not subject to the
derivative works exception), the parties agree that (i) ClearBox Rights shall be entitled to grant
so-called standard mechanical licenses without prior consultation of any of the parties, but (ii)
shall notify Robert Brumley, on behalf of Defendants, and Jackson Brumley, on behalf of
Plaintiffs, with respect to any request for a synchronization license or other “non-standard” or
reduced rate licenses. The notifications shall be provided via email, to Robert Brumley at
[e-mail] and to Jackson Brumley at [e-mail]. Each party shall approve or
reject such license in writing, within twenty-four hours after receiving the notice, after
consultation with ClearBox Rights, with each party entitled to exercise a vote based upon their
respective current pro-rata ownership share of copyright ownership. If ClearBox rights does not
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receive a response from any party within such time frame, it shall be entitled to exercise its
discretion on behalf of such party to grant a license on reasonable, industry-standard terms.
6.

To the extent any costs or expenses are incurred in connection with the escrow

process and/or administration of the copyright in the Composition by Clearbox Rights, Plaintiffs
shall be responsible for five-sixths (5/6) of such costs and expenses, and Defendants shall be
responsible for one-sixth (1/6). For purposes of clarification, Plaintiffs responsibility for a
portion of the costs and expenses incurred in connection with the administration of the Copyright
shall not apply with respect to the administration of non-United States licenses, the non-United
States portion of worldwide licenses, or licenses subject to the derivative works exception.

Dated: January 27, 2012

IT IS SO ORDERED.
_______________________
U.S. DISTRICT JUDGE

Respectfully submitted,

/s/ _Jason L. Turner__________________________
Jason L. Turner
KELLER TURNER RUTH ANDREWS GHANEM
& HELLER, PLLC
700 12th Avenue S, Ste. 302
Nashville, Tennessee 37203
[phone]
[e-mail]
Counsel for Plaintiffs

/s/ _Barry I. Slotnick_________________________
Barry I. Slotnick, admitted pro hac vice
Brittany A. Schaffer, No. 29025
LOEB & LOEB LLP
1906 Acklen Avenue
Nashville, Tennessee 37212
[phone]
[phone] (fax)
[e-mail]
[e-mail]
Counsel for Defendants

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