Brown trustee admits failure to learn about copyrights

By Sue Summer - For The Newberry Observer

SOUTH CAROLINA — The court-appointed defender of James Brown’s will has dropped his appeal of a 2015 ruling that Brown had a wife.

The ruling has a major impact on the 850+ copyrights that Brown left his education charity, the “I Feel Good” Trust — but in dropping the appeal, Limited Special Administrator (LSA) David Sojourner admitted that he failed to research information on copyright terminations and charitable trusts.

In Paragraph 2 of a settlement agreement with Tomirae Hynie Brown, the woman whose marital claim was the subject of the appeal, Sojourner issued this disclaimer following a discussion of Brown’s charity and copyright terminations: “(T)he LSA has not confirmed or expended estate funds to study the information set forth in this paragraph.”

Sojourner, a Columbia attorney, was appointed LSA for the purpose of defending Brown’s estate plan against will contests mounted by several of Brown’s children and Tomirae Hynie Brown, who claimed a spousal share of the estate.

The heart of Brown’s estate plan is his charity for needy students in South Carolina and Georgia, to be funded with copyrights and rights to his image.

Sojourner was recommended for LSA by current trustee Russell Bauknight, also of Columbia.

At the September 2013 hearing on whether Sojourner should be appointed, Aiken Judge Doyet Early asked him, “What resources does your firm have to become immediately involved in this litigation …?”

Sojourner testified under oath he would have access to attorneys who understood copyrights. “We have … not only attorneys that have experience in trusts and estate litigation, but we also have a music law office in Nashville … intellectual property lawyers … I believe our firm has the resources to handle all these matters.”

The disclaimer in the agreement indicates, however, that Sojourner failed to use these resources — or another resource, closely associated with the estate.

The settlement agreement was signed on Bauknight’s behalf by attorney David Black of mega-law firm Nexsen Pruet, which was paid about $3 million in legal fees from estate funds between 2013 and 2015.

On the firm’s website is found this excerpt from Managing Intellectual Property’s IP Stars 2016: “Some 16 attorneys at the firm (Nexsen Pruet) handle various degrees of intellectual property work, representing clients in both contentious and non-contentious patent, trademark and copyright matters …”

Further, the firm claims to have expertise in “arbitrating and mediating intellectual property disputes.”

Bauknight was named trustee of the Brown estate under a 2009 settlement deal worked by then-Attorney General Henry McMaster. Under the McMaster settlement, over half of what Brown left to charity was given to will contestants.

The second set of trustees appealed, and in May 2013 the S.C. Supreme Court overturned the settlement and returned the case to Aiken for further proceedings.

In the Court’s 2013 Wilson v. Dallas decision, the Court expressed grave doubts about the spousal claim of Tomirae Hynie. She exchanged vows with Brown in 2001, but her 1997 marriage to Javed Ahmed was not annulled until 2004.

At a 2014 hearing on Brown’s marital status, Judge Early excluded the evidence of Tomirae Hynie’s “diary,” in which she recorded Brown saying, “I got no wife and you get nothing.”

Sojourner did not challenge the decision to exclude the diary, and Judge Early ruled in early 2015 that Hynie and Brown were married. Because the diary was not used in the original hearing, it could not be used as evidence on appeal by Sojourner or the Brown children.

Sojourner’s disclaimer in the Tomirae Hynie Brown settlement follows Paragraph 2, “Termination rights.” Under this paragraph, Tomirae Hynie Brown agrees to contribute 65 percent of the proceeds from her federal copyright termination rights to Brown’s education charity. She claims the charity will receive these funds only if she is ruled the surviving spouse.

When the settlement was filed with the Appeals Court, the Brown children asked the Court to disclose any “secret terms” not in the filed agreement. On Sept. 19 the Court denied the children access to further information.

The Brown children had also asked in circuit court to have “secret terms” disclosed, but a scheduled hearing before Judge Early was not held.

While the Brown children have concerns about “secret terms,” copyright experts have other concerns about the settlement.

In April, terminations rights litigator Marc Toberoff of Malibu, Calif., raised questions in the Appeals Court about whether the federal law prohibited the terms of the settlement agreement.

Toberoff represented the Ray Charles heirs in termination rights litigation.

Local copyright expert Jeffrey Smith also raised questions about “troublesome” provisions in the one-paragraph description of termination rights above the disclaimer.

Among Smith’s concerns is that Tomirae Hynie Brown may choose not to exercise terminations rights, and Brown’s charity would, therefore, receive nothing.

Another concern is the failure to acknowledge that termination rights apply only to U.S. copyrights, not to international copyrights — and Brown’s songs have world-wide popularity.

“Too, ‘65 percent of the proceeds’ may sound like a good bit, but it is not clear whether attorney fees or other costs will be taken out before the ‘proceeds’ are calculated,” Smith said.

Jeffrey Smith of Newberry co-authored a 2011 professional article on the “delicate dance” between foundations and heirs with former Brown trustee, Adele Pope of Newberry, “Private Foundations, Copyright Heirs, and Musical Millionaires: Why the James Brown ‘I Feel Good’ Trust Doesn’t.”

Smith is a graduate of Clemson University and holds a law degree from Georgetown University Law Center with emphasis in intellectual property, including copyrights. He previously worked at the U.S. Patent and Trademark Office in Washington, D.C.

By Sue Summer

For The Newberry Observer