Miley Cyrus was recently sued for allegedly copying parts of the Bruno Mars song “When I Was Your Man” in her hit song "Flowers.” The Mars song was released in 2012 on his second album entitled Unorthodox Jukebox.
The lawsuit for copyright infringement was filed in federal court in Los Angeles on September 16, 2024. A company called Tempo Music Investments (“Tempo”) is the plaintiff. The defendants are Cyrus, co-writers of the song Gregory Hein and Michael Pollack, as well as Apple, Sony Music Publishing, Live Nation, Target, Walmart and others that plaintiff alleges distributed the song. The plaintiff alleges that defendants failed to ask or receive permission to use the song.
Tempo states that in 2020 it obtained rights to the Mars song by purchasing songwriter Philip Lawrence’s catalog. Lawrence co-wrote the song with Mars and other songwriters.
The plaintiff alleges that the songs are substantially similar and that “Flowers duplicates numerous melodic, harmonic, and lyrical elements of ‘When I Was Your Man,' including the melodic pitch design and sequence of the verse, the connecting bass-line, certain bars of the chorus, certain theatrical music elements, lyric elements, and specific chord progressions.” The plaintiff claims that when one compares the similar lyrics of the two songs it is apparent this is “no coincidence.”
The plaintiff alleges in the lawsuit that “It is undeniable based on the combination and number of similarities between the two recordings that ‘Flowers’ would not exist without the Mars song. Both songs are about breakups and have similar lyrics about purchasing flowers, holding hands and hours spent talking.
Tempo alleges it is entitled to damages for “the maximum of $150,000 per infringement” and demands that defendants stop copying, performing or distributing the song.
“Flowers” was a huge hit for Cyrus when it was released in 2023. At the 2024 Grammy’s Cyrus won Record of the Year as well as Best Pop Solo performance for the song. It also broke a Spotify record for streaming over 1 billion streams quicker than any other song in Spotify’s history.
It may sound like an open and shut case, but the defenses to copyright infringement can be complex. For instance, defendants may argue that their use of the Mars song was not copyright infringement because of the legal concept known as “Fair Use.” Plaintiff may contend that Cyrus’ song is “transformative” meaning it may be based on the Mars song but in a way that adds something new or different. This concept can be a factor in deciding if the use is fair. One example of a transformative use is parody.
Often the parties settle music copyright infringement cases before trial. The judge can also grant summary judgment without a trial if he determines there are no issues of fact, and it is strictly a matter of law. If the case does go to trial both sides with undoubtedly hire expert musicologists to dissect the two songs and give their opinions on the issues.
