{"id":3763,"date":"2024-10-22T15:59:29","date_gmt":"2024-10-22T19:59:29","guid":{"rendered":"https:\/\/journals.law.harvard.edu\/jsel\/?p=3763"},"modified":"2024-10-22T15:59:29","modified_gmt":"2024-10-22T19:59:29","slug":"miley-cyrus-faces-lawsuit-over-flowers-riff-off-or-rip-off","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/jsel\/2024\/10\/miley-cyrus-faces-lawsuit-over-flowers-riff-off-or-rip-off\/","title":{"rendered":"Miley Cyrus Faces Lawsuit over \u201cFlowers\u201d: Riff-off or Rip-off?"},"content":{"rendered":"
\"\"<\/a>
Las Vegas, NV, USA – September 21, 2019: Miley Cyrus performs at the 2019 iHeartRadio Music Festival.<\/figcaption><\/figure>\n

Written by Hugh Reynolds.<\/p>\n

The high-profile copyright suit raises questions about fair use, parody, and the extent to which musicians can build off one another.<\/span><\/em><\/p>\n

Miley Cyrus was <\/span>sued<\/span><\/a> in the United States District Court for the Central District of California for her Grammy award-winning single \u201cFlowers.\u201d\u00a0<\/span><\/p>\n

The plaintiff, Tempo Music Investment, is alleging copyright infringement, claiming Cyrus copied the Bruno Mars song \u201cWhen I Was Your Man.\u201d 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.\u00a0<\/span><\/p>\n

According to <\/span>the complaint<\/span><\/a>, Cyrus\u2019s song \u201cduplicates numerous melodic, harmonic, and lyrical elements\u201d of \u201cWhen I Was Your Man,\u201d constituting unlawful copying. Furthermore, Tempo Music alleges that the \u201cunauthorized reproduction, distribution, and exploitation\u201d 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.\u00a0<\/span><\/p>\n

Readers may be confused by the use of the word \u201ccopying\u201d or \u201creproduction\u201d in this context\u2014 listening to the two songs, it\u2019s clear they are not <\/span>exactly<\/span><\/i> 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 <\/span>Bright Tunes Music Corp. v. Harrisongs Music, Ltd.<\/span><\/i><\/a>, (S.D.N.Y. 1976) George Harrison was sued for impermissibly copying the Chiffron\u2019s song \u201cHe\u2019s So Fine\u201d in his song, \u201cMy Sweet Lord.\u201d 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.\u00a0<\/span><\/p>\n

This case is one of many recent legal disputes involving hit tracks, songwriting credits, and copyright allegations.\u00a0<\/span><\/p>\n

In 2015, <\/span>a federal jury found that Robin Thicke\u2019s song \u201cBlurred Lines\u201d had copied Marvin Gaye\u2019s song \u201cGot to Give It Up,<\/span><\/a>\u201d resulting in a $7.3 million award. Similarly, <\/span>Ed Sheeran was sued by the Gaye estate<\/span><\/a> in 2016 for copying the song \u201cLet\u2019s Get It On\u201d on his song \u201cThinking Out Loud.\u201d The jury here, however, ruled in favor of Sheeran, finding his composition was not a copy.\u00a0<\/span><\/p>\n

The Cyrus case can be differentiated from the two Gaye suits in one key respect: <\/span>public sentiment reflects that the two songs are related<\/span><\/a>. The <\/span>Hollywood Reporter stated<\/span><\/a> that listeners understood Cyrus\u2019s song to be an \u201cinterpolation\u201d of \u201cWhen I Was Your Man.\u201d\u00a0 <\/span>According to the Daily Mail<\/span><\/a>, the Mars song was important to Cyrus and her ex-husband during their relationship, and \u201cFlowers\u201d was then written after their divorce <\/span>as a reaction<\/span><\/a> to the Mars song\u2019s lyrics. The lyrical parallels are clear: where Mars wrote, \u201c…I should have bought you flowers,\u201d Cyrus wrote \u201cI can buy myself flowers.\u201d This evidence may indicate that Tempo Music\u2019s copying claim holds water, but also creates a basis for Cyrus\u2019s potential defense.\u00a0<\/span><\/p>\n

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. \u00a7107. Although both sides of the argument here have merit, it is likely that she would succeed on a fair use defense.\u00a0<\/span><\/p>\n

In deciding if use qualifies as fair, a court considers whether the defendant used the copyrighted work in a way that was \u201ctransformative.\u201d This transformative determination has become the important element in fair use analysis.\u00a0<\/span><\/p>\n

Numerous cases have demonstrated that parody and commentary can be sufficiently transformative to qualify for fair use. In the seminal case <\/span>Acuff-Rose v. Campbell<\/span><\/i><\/a> (1994), the rap group 2 Live Crew successfully claimed fair use in parodying the Roy Orbin song \u201cOh, Pretty Woman.\u201d 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. <\/span>Acuff-Rose<\/span><\/i> 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.\u00a0<\/span><\/p>\n

Cyrus could argue her song is a parody of, and commentary on, Mars\u2019 song. In \u201cWhen I was Your Man,\u201d Mars laments that he should have taken better care of his former partner. In \u201cFlowers,\u201d Cyrus responds to Mars\u2019 lyrics and unapologetically declares that she doesn\u2019t regret leaving: \u201cI didn\u2019t want to leave you\u2026 but then I remembered\u2026 I can love me better than you can.\u201d Cyrus isn\u2019t merely copying Mars\u2019 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.\u00a0<\/span><\/p>\n

The plaintiff, in arguing that Cyrus\u2019s use was not fair, will need to argue that Cyrus\u2019s work does not sufficiently parody Mars\u2019 song to qualify as transformative. If the plaintiff is successful, Cyrus\u2019s fair use defense may fail in the wake of the recent Supreme Court case <\/span>Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith<\/span><\/i><\/a> (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\u2019s song \u201cFlowers\u201d is insufficiently transformative, sharing the same purpose as Mars\u2019 \u201cWhen I Was Your Man\u201d as a commercial, mass-marketed pop song.\u00a0<\/span><\/p>\n

However, the persuasiveness of the plaintiff\u2019s argument will depend on whether or not Cyrus\u2019s work qualifies as parody or commentary. The Court in <\/span>Goldsmith<\/span><\/i> stressed that <\/span>Acuff-Rose<\/span><\/i> is still good law, as a parody\u2019s purpose is sufficiently different from that of the targeted work to qualify as transformative. J. Sotomayor wrote for the Court, \u201cCriticism of a work\u2026ordinarily does not supersede the objects of, or supplant, the work. Rather, it uses the work to serve a distinct end.\u201d Thus, if Cyrus\u2019s work is deemed to sufficiently parody or comment on Mars\u2019 song, it will survive <\/span>Goldsmith<\/span><\/i>.\u00a0<\/span><\/p>\n

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 <\/span>Goldsmith<\/span><\/i>.\u00a0<\/span><\/p>\n

Music, by its very nature, is referential\u2014 musicians and genres influence and play off one another. This raises the question, \u201cHow much is too much?\u201d 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?\u00a0<\/span><\/p>\n

While musical artists should know the extent of their protections, developments in the fair use analysis \u2014 which was already vague and unpredictable\u2014 are increasingly leaving songwriters in the dark. <\/span><\/p>\n","protected":false},"excerpt":{"rendered":"

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 \u201cFlowers.\u201d\u00a0 The plaintiff, Tempo Music Investment, is alleging copyright 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