Miley Cyrus Faces Lawsuit over “Flowers”: Riff-off or Rip-off?

Written by Hugh Reynolds.

The high-profile copyright suit raises questions about fair use, parody, and the extent to which musicians can build off one another.

Miley Cyrus was sued in the United States District Court for the Central District of California for her Grammy award-winning single “Flowers.” 

The plaintiff, Tempo Music Investment, is alleging copyright infringement, claiming Cyrus copied the Bruno Mars song “When I Was Your Man.” More than two dozen music publishers and companies were named as defendants, including Apple, Sony Music Entertainment, and Live Nation. The plaintiff acquired a share of the copyright in the Mars track in 2020. 

According to the complaint, Cyrus’s song “duplicates numerous melodic, harmonic, and lyrical elements” of “When I Was Your Man,” constituting unlawful copying. Furthermore, Tempo Music alleges that the “unauthorized reproduction, distribution, and exploitation” of the Mars song caused them to lose profits. Tempo Music is seeking maximum statutory damages, totaling $150,000 per infringement. Mars was not a party to the suit. 

Readers may be confused by the use of the word “copying” or “reproduction” in this context— listening to the two songs, it’s clear they are not exactly the same. Copying, as a legal element of a copyright claim, does not exclusively mean exact replication; a protected work can be infringed upon if another work is substantially similar. For example, in Bright Tunes Music Corp. v. Harrisongs Music, Ltd., (S.D.N.Y. 1976) George Harrison was sued for impermissibly copying the Chiffron’s song “He’s So Fine” in his song, “My Sweet Lord.” In this case, the court found that Harrison, in seeking to write his own composition, accidentally and subconsciously wrote a song mirroring the melody and structure of another song. This was enough to constitute copyright infringement. 

This case is one of many recent legal disputes involving hit tracks, songwriting credits, and copyright allegations. 

In 2015, a federal jury found that Robin Thicke’s song “Blurred Lines” had copied Marvin Gaye’s song “Got to Give It Up,” resulting in a $7.3 million award. Similarly, Ed Sheeran was sued by the Gaye estate in 2016 for copying the song “Let’s Get It On” on his song “Thinking Out Loud.” The jury here, however, ruled in favor of Sheeran, finding his composition was not a copy. 

The Cyrus case can be differentiated from the two Gaye suits in one key respect: public sentiment reflects that the two songs are related. The Hollywood Reporter stated that listeners understood Cyrus’s song to be an “interpolation” of “When I Was Your Man.”  According to the Daily Mail, the Mars song was important to Cyrus and her ex-husband during their relationship, and “Flowers” was then written after their divorce as a reaction to the Mars song’s lyrics. The lyrical parallels are clear: where Mars wrote, “…I should have bought you flowers,” Cyrus wrote “I can buy myself flowers.” This evidence may indicate that Tempo Music’s copying claim holds water, but also creates a basis for Cyrus’s potential defense. 

Should this complaint proceed to litigation, Cyrus would likely raise a fair use defense: she would admit to copying the Mars work, but claim her copying was legal under 17 U.S.C. §107. Although both sides of the argument here have merit, it is likely that she would succeed on a fair use defense. 

In deciding if use qualifies as fair, a court considers whether the defendant used the copyrighted work in a way that was “transformative.” This transformative determination has become the important element in fair use analysis. 

Numerous cases have demonstrated that parody and commentary can be sufficiently transformative to qualify for fair use. In the seminal case Acuff-Rose v. Campbell (1994), the rap group 2 Live Crew successfully claimed fair use in parodying the Roy Orbin song “Oh, Pretty Woman.” The Supreme Court determined that the parody qualified as transformative: the use did not simply supplant the protected work but added something new, with a different purpose and character. Acuff-Rose specified two important points about parody and fair use: first, for a work to qualify for parody protection, it must either comment on, or criticize, the original work; second, the fact that a parody is commercial does not preclude it being transformative. 

Cyrus could argue her song is a parody of, and commentary on, Mars’ song. In “When I was Your Man,” Mars laments that he should have taken better care of his former partner. In “Flowers,” Cyrus responds to Mars’ lyrics and unapologetically declares that she doesn’t regret leaving: “I didn’t want to leave you… but then I remembered… I can love me better than you can.” Cyrus isn’t merely copying Mars’ song, but using it to create an entirely new, distinctive work with its own unique message. This would likely qualify as transformative, leading Cyrus to succeed in her fair use defense. 

The plaintiff, in arguing that Cyrus’s use was not fair, will need to argue that Cyrus’s work does not sufficiently parody Mars’ song to qualify as transformative. If the plaintiff is successful, Cyrus’s fair use defense may fail in the wake of the recent Supreme Court case Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith (2023). Here, the Court clarified that when a defendant’s purported transformation of a protected work is mostly attributable to the author’s artistic intent rather than identifiable changes, their work may not be sufficiently transformative to tilt the most important prong of fair use analysis in their favor. This is especially true when the two works share a market. The plaintiff would argue Cyrus’s song “Flowers” is insufficiently transformative, sharing the same purpose as Mars’ “When I Was Your Man” as a commercial, mass-marketed pop song. 

However, the persuasiveness of the plaintiff’s argument will depend on whether or not Cyrus’s work qualifies as parody or commentary. The Court in Goldsmith stressed that Acuff-Rose is still good law, as a parody’s purpose is sufficiently different from that of the targeted work to qualify as transformative. J. Sotomayor wrote for the Court, “Criticism of a work…ordinarily does not supersede the objects of, or supplant, the work. Rather, it uses the work to serve a distinct end.” Thus, if Cyrus’s work is deemed to sufficiently parody or comment on Mars’ song, it will survive Goldsmith. 

Should this go to litigation, this case would shed light on the contours of the fair use doctrine and its application in music. American copyright law is in a period of transition. Artists need clarity on the fair use doctrine, and the extent to which parody and commentary are affected by Goldsmith. 

Music, by its very nature, is referential— musicians and genres influence and play off one another. This raises the question, “How much is too much?” If an artist, after feeling inspired by their favorite singer-songwriter, writes and releases original music, how fearful should they be that their creative hero comes looking for a cut of the proceeds? 

While musical artists should know the extent of their protections, developments in the fair use analysis — which was already vague and unpredictable— are increasingly leaving songwriters in the dark.