Miley Cyrus Sued Over “Flowers” For Copyright Infringement: Analyzing Arguments
by Joseph Theis
Miley Cyrus has been sued in federal court over her song “Flowers” by Tempo Music Investments, LLC. Tempo filed their complaint in United States District Court, Central District of California, Western Division on Monday, September 16, 2024. The complaint names Cyrus, as well as the other songwriters on “Flowers” and the publishers and distributors of the song, including Gregory Hein, Michael Pollack, and Sony Music Publishing.
Tempo alleges in the complaint that Cyrus et al. copied Bruno Mars’ track “When I Was Your Man,” which reached number one on the Billboard Hot 100 in 2013. Tempo claims to have acquired a percentage of the copyright interests in “When I Was Your Man” in 2020 through assignment by one of the song’s co-writers.
The Standard
To prevail on a copyright infringement claim, a plaintiff must show that (1) he or she owns the copyright in the infringed work, and (2) the defendant copied protected elements of the copyrighted work. A plaintiff may use direct or circumstantial evidence to prove copyright infringement. To prove infringement through circumstantial evidence, the plaintiff must show that the defendant had access to the allegedly infringed work, and that the two works at issue are substantially similar.
The Ninth Circuit uses a two-part test for substantial similarity: an extrinsic test and an intrinsic test. The extrinsic test is objective, looking to external criteria to determine whether the protected elements of the subject works share similar ideas and expression. The intrinsic test is subjective, asking whether the ordinary, reasonable person would find the total concept and feel of the subject works to be substantially similar.
The Arguments
In the complaint, Tempo outlines ownership rights in “When I Was Your Man” through assignment, and cites the recordation of the assignment with the Copyright Office, aiming to satisfy part (1) of the standard to prevail on a copyright infringement claim. This essentially serves as a standing requirement, showing that Tempo in fact has a stake in the subject copyright and has the right to bring suit to enforce on that copyright.
Part (2) of the standard to prevail on a copyright infringement claim demands more nuanced and complex arguments. Tempo alleges that Cyrus et al. had access to “When I Was Your Man” and that “Flowers” is substantially similar, both extrinsically and intrinsically.
In order to prove that Cyrus et al. had access to “When I Was Your Man,” Tempo lists a number of instances wherein Mars’ song would have likely been heard before it was allegedly copied. Tempo includes in this list the publication of Mars’ song ten years prior to “Flowers,” music publishers who were credited for both songs, a performance of Mars’ song that Cyrus had attended, and that Mars’ song topped the Billboard Hot 100 songs chart. Each of these pieces of evidence contribute to an assertion that, given the widespread availability and popularity of “When I Was Your Man,” it would be unlikely that Cyrus et al. would not have heard the song nor have been familiar with its lyrics and composition.
Having laid the foundation of access, Tempo next argues that “Flowers” is substantially similar to “When I Was Your Man.” Tempo does so first by demonstrating the similarities between the two songs in their musical compositions, including in the complaint side-by-side musical notations and highlighting key parts of the choruses that appear nearly identical. Tempo also details the melodic and harmonic progression of both songs, citing the respective chords and key musical fingerprints of each. These arguments are aimed at the extrinsic prong of the substantial similarity test, arguing that characteristics of each song are objectively similar based on elements of basic music composition. Tempo then argues that the two songs are substantially similar to the ordinary, reasonable person based on more subjective elements, such as performance styles, musical paraphrasing, and subject matter. By pointing to these more interpretive aspects of the songs, Tempo aims to satisfy the intrinsic prong of the substantial similarity test.
Tempo concludes the complaint by demanding damages of an unspecified amount in total, but including statutory damages in the maximum amount of $150,000 per instance of infringement.
Analysis
Having reviewed the complaint and outlined the arguments above, Tempo makes a compelling case for copyright infringement. The access argument appears undeniable, and Cyrus et al. will likely not deny that they have heard “When I was Your Man.” Provided the song’s popularity and the fact that Cyrus personally attended a live performance of the song, access seems to have been proven here.
Further, the arguments regarding substantial similarity are not unfounded. The lyrics of the chorus in “Flowers” are plainly playing off the lyrics of “When I was Your Man,” turning each phrase as though a direct response. The melodic similarities of each chorus are also represented in the notations provided in Tempo’s complaint, and the instances of identical melodies and harmonic progression - especially in light of the lyrical content - clearly represent intentional imitation. Even to the ordinary, reasonable person, particular protectible aspects of “When I was Your Man” are reflected in “Flowers.” As cited by Tempo in their complaint, Billboard reported in 2023 that music listeners recognized lyrical and melodic similarities between the songs and speculated that Cyrus was inspired by the Mars hit. In fact, streams of “When I was Your Man” increased by 19.5% the week following the release of “Flowers.” Billboard has also reported on fan theories that connected the two songs based on Cyrus’ relationship history with ex Liam Hemsworth, who had reportedly dedicated Mars’ song to Cyrus after they had broken off their first engagement. All of these pieces of evidence together paint an almost undeniable picture of intentional copying by Cyrus in creating “Flowers.”
However, that does not mean that Tempo will prevail in their lawsuit. Cyrus et al. have substantial and compelling arguments in the affirmative defense of fair use. There is also significant precedent for successful arguments for fair use in music copyright infringement. There are a number of statutory factors to consider in determining fair use, outlined in 17 U.S.C. § 107:
In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include —
the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
the nature of the copyrighted work;
the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
the effect of the use upon the potential market for or value of the copyrighted work.
There is significant case law regarding interpretation and application of these factors to specific instances of alleged infringement. The landmark Supreme Court case Campbell v. Acuff-Rose Music Inc. applied these factors to determine whether a case of alleged copyright infringement fell under fair use. In Campbell, the Court introduced an additional consideration to the first factor, finding that the more transformative the purpose and character of the use, the less important the subsequent factors in weighing fair use. The Court in that case determined that a parody rap lampooning the well-known Roy Orbison song “Pretty Woman” fell under fair use, despite explicitly copying the earlier work, utilizing the original lyrics and melody for its parodic message. The transformative nature of the derivative work outweighed its use of integral, protected aspects of “Pretty Woman.”
In the case of “Flowers,” Cyrus et al. can argue that their song falls under fair use, particularly relying on its transformative aspects. The four fair use factors likely weigh in “Flowers’” favor, beginning with the purpose and character of the use. Here, “Flowers” may be a commercial work, but is also a response of sorts to “When I Was Your Man,” engaging in indirect conversation both with her ex and with the ideas and scenarios illustrated in Mars’ song. Where Mars laments that he should have bought his former lover flowers and held her hand, Cyrus belts that she can buy herself flowers and hold her own hand, rebuffing the very idea that she needs or wants passé romantic ideals from a particular paramour. Though perhaps not a traditional parody, “Flowers” certainly critiques the messages expressed by “When I Was Your Man” and rejects them outright, recontextualizing the sentiments and sentimentality of Mars’ song. Rather than a sorrowful break-up ballad, “Flowers” inverts the original lyrics and reinvents the song as an independent, defiant anthem. Provided that the court determine this sufficiently transformative, Cyrus could prevail under the first factor.
The following factors are generally weighed less heavily, though the third factor would likely prove consequential here as well. Prior rulings have found copying even small portions of a protected work exceeds fair use where those portions amount to the heart of the work; however, in the case of commentary or parody, courts have determined that even large portions of protected works may be used if necessary for the nature of the user’s purpose, and if sufficiently transformative. “Flowers” does take from the chorus of “When I Was Your Man,” arguably the heart of the work, though Cyrus could argue that the nature of her commentary necessitated the use of the lyrics and melody of Mars’ chorus. There are also slight changes to the lyrics and melody, and so “Flowers” does not copy whole cloth. This factor also likely weighs in Cyrus’ favor, given the relatively small portion of “When I Was Your Man” used in “Flowers,” and the necessity of that portion for Cyrus’ use in a work of artistic commentary.
Applying these factors to the use of “When I Was Your Man,” the transformative nature of “Flowers” and the fairly restricted copying within the context of both works tends toward a finding of fair use.
Conclusion
On an initial overview of the complaint filed by Tempo Music Investments, the case for copyright infringement appears compelling. Tempo’s argument rests on two key pillars: demonstrating access and proving substantial similarity. The widespread popularity of Mars’ song and Cyrus’ attendance at a live performance make the access argument particularly strong. The comparison of lyrics, melody, and harmonic progression of the two songs also provides significant evidence for substantial similarity.
However, Cyrus and her co-defendants have a potentially strong defense in the doctrine of fair use. The transformative nature of “Flowers,” which can be interpreted as a commentary on or response to the themes in “When I Was Your Man,” will likely be pivotal in this case. Drawing parallels to landmark cases, Cyrus’ team could argue that “Flowers” represents a creative reinterpretation that critiques and subverts the original work’s message.
Ultimately, this case highlights the ongoing tensions in copyright law between protecting original works and fostering creative expression. It underscores the challenges in drawing the line between inspiration and infringement, especially in an era where musical references and reinterpretations are increasingly common. The outcome of this lawsuit could have significant implications for future cases involving similar artistic practices in the music industry.
As the case proceeds, legal experts, musicians, and industry professionals alike will watch closely for subsequent filings. Regardless of the verdict, this case will serve as the latest contribution to the evolving body of decisions surrounding copyright and fair use. Theis Chayse will continue to follow this case and will provide additional analysis as further developments unfold.
To learn more about intellectual property protections and to consult with an experienced copyright attorney, please send an inquiry to theis@tcip.law.
