So who is Tomi Rae Hynie?
A former Janis Joplin impersonator in Las Vegas, she became a backup singer for Brown and eventually, in 2001, his fourth wife. But she had a secret: At the time of the nuptials with Brown, Hynie was already married to another man, Javed Ahmed, and had been since 1997. Ahmed, in turn, had his own secret: When he married Hynie, he already was married to at least three other women in Pakistan. He told her about these wives after the ceremony and disappeared without consummating the marriage, according to Hynie. He was only interested in U.S. citizenship.
Hynie, now 49, got her marriage to Ahmed annulled in 2004, but by then her relationship with Brown had become rocky. That year, Hynie and Brown got into a physical altercation. The singer was arrested for domestic assault, which led to a separation. Brown then sought his own annulment, and she countersued for divorce. The question of whether the two were really legally married was not resolved at the time. Months after the separation, Brown and Hynie informed a court of a settlement wherein she would waive any claim of a common law marriage. Hynie says she then reconciled with Brown and they lived together until his death.
But Hynie wasn't in Brown's will, because he never updated it during their relationship. She petitioned to correct this upon his demise.
The issue of bigamy upon bigamy partially explains the longevity of the probate case, which has traveled up the appellate circuit, down again, and up once more as judges in South Carolina wrestled with the implication of marrying someone married to someone else married to yet others. In July, a South Carolina appeals court affirmed a decision that because the state doesn't recognize bigamous marriage, Hynie and Ahmed were never really married. Therefore, Hynie "had no impediment to her valid marriage to Brown," the court ruled.
Meanwhile, there is the son, James II, who, like his mother, wasn't included in Brown's will. The doubts regarding his lineage stem from word that in the 1980s Brown had a vasectomy specifically to avoid paternity suits — and James II was Brown's only child born in the aftermath.
James II proved himself the son after undergoing a DNA test — twice. There are lingering bad feelings about making him go so far. In a court brief on Sept. 11, a lawyer for the administrator of the James Brown Estate noted that several of Brown's other children "have failed to submit to the probate DNA protocol."
But, of course, the fight isn't over. There's continued appealing wherein Brown's other children are arguing that the story of Ahmed's Pakistani wives relies on inadmissible hearsay without any discovery on the true facts. "We are extremely optimistic that Tomi Rae's spousal status will be swiftly reversed by the South Carolina Supreme Court as it is contrary to law on so many levels," says Marc Toberoff, the attorney now representing nine heirs of James Brown.
In January, these heirs — Deanna Brown-Thomas, Yamma Brown, Kenisha Brown, Michael D. Brown, Nicole C. Brown, Jeanette Bellinger, Sara Fegan, Ciara Pettit, and Cherquarius Williams — filed a separate complaint in California. The lawsuit has since been moved to South Carolina federal court (Brown was born in Barnwell, South Carolina). Hynie is accused in the suit of having "embarked on a series of duplicitous business machinations calculated to deprive Brown's children of their rightful interests in Brown's music under the Copyright Act."
To understand the basis and import of the lawsuit, one must first know a little something about an increasingly important realm of copyright law known as termination rights. In the 1970s, Congress extended the copyright term. In doing so, lawmakers chose to recognize that many who had created works at the early stage of their careers had assigned rights to publishers without much bargaining power. So authors — or their heirs — were allowed to terminate those deals 35 years after their work was published and reclaim rights during the later years of the copyright term. Many songwriters including Bob Dylan, Tom Petty, Prince and David Byrne have either done so or threatened to do so as they renegotiated royalty deals. Given the year (1978) when the law went into effect and the 35-year wait period, these termination rights are just beginning to make a big impact in probate cases and elsewhere (like celebrity divorces).
As a surviving spouse, Hynie would be entitled to 50 percent of the termination interest, with the other 50 percent shared by the surviving children (or grandchildren if the child is deceased). Importantly, because of her huge stake, Hynie is in position to veto any move to reclaim song rights. And, of course, if there's no termination, then under existing song publishing agreements, royalties flow to the estate, which distributes the money in accordance with Brown's will and any court-ordered alterations. Before he died, Brown earmarked some of his estate to go to charitable endeavors. According to the estate, although the intention has been to donate money for scholarships to needy children, "to date not one penny has been available for those scholarships because the probate litigation has continued."
In the new lawsuit, Brown's children (other than James II) recount the battle over marriage and paternity, although they say they are not seeking to "re-litigate" Hynie's and James II's status as surviving spouse and child at least in the federal action. The latest case focuses most heavily on "back-room agreements."
Beginning in 2013, according to the complaint, a consultant for the estate attempted to get the children to sign away their copyright termination interests in return for cash payments. States the complaint: "Defendants deliberately concealed the underhanded nature of these proposals by orchestrating their pressure campaign through go-betweens who falsely professed to be working in Plaintiffs’ best interests."
As the administrators of the estate were allegedly orchestrating a plan to rob the children of their termination interests, Hynie and James II served notice on Warner/Chappell Music, the publisher and rights holder of James Brown's back catalog, that they were exercising termination rights on 138 of Brown's compositions. The two didn't tell the other heirs.
Then, in 2015, continues the complaint, Hynie came to a $1.875 million deal with Warner/Chappell to transfer back rights to five of the songs. The suing children claim that the deal was written in a manner that leaves intact a royalty structure that favored the estate to the disadvantage of Brown's children. Hynie, whose status as surviving spouse is no longer being challenged by the estate thanks to a settlement, is essentially accused of trading away the family's copyright termination powers. The children and grandchildren, sensing they've been largely cut out, think the back-room dealing stinks to high heavens.
How might this all end?
Hynie and the estate administrators are seeking dismissal with the argument that the children really do wish to rehash a lot of the issues already dealt with in probate court and on appeal. They say the children have "failed to achieve their goals" in prior proceedings and are using this as a "backup." They argue that the litigation doesn't belong in federal court, and that copyright law provides no remedy to invalidate the types of agreements at issue.
This case has the potential of upending family dynamics and the typical division of assets for deceased musicians (and other authors). If copyright law prevents pre-assigning termination rights, can a surviving spouse make deals pre-assigning the proceeds from a family's termination interests? Can a surviving spouse cut out other heirs by making deals with third parties not to exercise termination rights? Must the estates of authors now be settled in a different legal forum than everyone else in the country because of these strange legal mysteries? How will those currently planning estates for authors, especially those with large families, possibly navigate the madness at hand to prevent more decade-long legal wars?
"[Termination] is becoming a bigger deal," says Zia Modabber, a managing partner at the Katten law firm who a few years ago handled a copyright termination dispute involving Smokey Robinson and his ex-wife. "A lot of the music has now been out long enough that copyright termination is coming up for the first time. We're going to see more of that. And the rules and facts are so complicated, it's getting to be very messy."
This article originally appeared on The Hollywood Reporter.