Miley Cyrus can buy “flowers,” but can she avoid a copyright lawsuit?

Contributing author: Daniel Rozansky

When Miley Cyrus released “Flowers” in January 2023, the pop anthem seemed destined for the history books. It broke Spotify streaming records with over a billion streams in just 112 days and climbed to No. 1 on Billboard’s Hot 100. While fans speculated that the breakup song was an obvious reference to his ex-husband Liam Hemsworth, it wasn’t the actor who took legal action – instead, music rights acquisition fund Tempo Music Investments, LLC (“Tempo”) “came forward like one.” Broke “Ball” with an unexpected copyright lawsuit.

The sound of a complaint

In 2013, Bruno Mars hit the jackpot with “When I Was Your Man,” a soulful ballad co-written by eight-time Grammy winner Philip Lawrence. The track dominated the charts and earned Mars a Grammy nomination for Best Pop Solo Performance. Seven years later, Tempo acquired Lawrence’s music catalog – and with it his interest in the song’s copyright.

On September 16, 2024, Tempo fired its first shot, filing a copyright infringement lawsuit against Cyrus in the Central District of California. The lawsuit alleges that “Flowers” ​​copies “distinct, important and recognizable portions” of the Mars hit, creating an unauthorized derivative work. The complaint casts a wide net, naming Cyrus alongside co-authors Gregory Hein and Michael Pollack, as well as Sony Music Entertainment, Concord, Warner-Tamerlane Publishing Corp and various streaming platforms.

Break the beat

According to the complaint, the musical DNA of “Flowers” ​​bears striking similarities to “When I Was Your Man.” The lawsuit points to common elements in melody, harmony and structure, noting that “the opening vocal line of the chorus of ‘Flowers’ begins and ends with the same chords as the opening vocal line of the verse of ‘When I Was Your Man.'” . ‘” The alleged similarities extend to the bass line, chorus structure, theatrical elements, lyrics and chord progressions.

Tempo argues that these parallels have not gone unnoticed, citing Billboard’s observation that “any listener can tell that the song features a chorus that is the opposite of what Cyrus sings on ‘Flowers.'” Due to Given Cyrus’ presence at the 2013 iHeartRadio Music Festival, where Mars performed the song, there is no doubt that the defendants had prior exposure to the work, which may be an important factor in establishing a copyright claim.

“Can’t be tamed” or won’t be sued?

Cyrus’ legal team has come out forcefully, arguing that Tempo’s complaint is completely flawed because it did not include Mars and other co-authors. Their motion to dismiss puts it succinctly: “Plaintiff brings this copyright infringement action alone – without any co-authors or other owners of this musical composition.” Cyrus argues that Tempo purchased only a portion of a co-author’s interest in the song and Tempo purchased without exclusive Copyright rights are not covered by the Copyright Act.

The defense also claims that any similarities are merely “random, scattered, unprotected ideas and musical building blocks” – standard elements of the musical vocabulary and not copied material.

Will Tempo’s case “bloom”?

If the motion to dismiss is denied, three hurdles must be overcome for Tempo to ultimately prevail: establishing widespread distribution and access to the original work, establishing substantial and objectively verifiable similarities, and establishing damages. Proving actual harm can be a significant challenge. “When I Was Your Man” was released ten years before “Flowers.” Therefore, it is difficult to prove that “Flowers” ​​caused a loss in sales of “When I Was Your Man.” On the other hand, if it prevails on liability, it may be able to “skim” profits attributable to the infringing work.

Hitting a new nerve: lessons for the industry

This high-profile dispute offers valuable insights into law and music. First, the case highlights the importance of the exclusive rights an artist must have to assert a copyright claim, regardless of the degree of similarity.

Second, this case illustrates the increasingly complex landscape of music copyright law at a time when complete originality seems increasingly difficult to achieve with each new release. For artists and their legal teams, the key may be finding harmony between creative inspiration and legal protection – both in the studio and in the courthouse.

The music industry will be closely monitoring the development of this case. Because in copyright law, as in pop music, the difference between a hit and a miss sometimes lies in the smallest detail.

Legal Entertainment has reached out to the representative for comment and will update this story as necessary.

Daniel Rozansky is a partner at Stubbs Alderton & Markiles LLP in Los Angeles. He practices in the areas of entertainment, intellectual property and commercial litigation, representing clients on a variety of platforms, including film, television, music, concerts and tours, and digital media. He regularly reviews television pilots, scripts and other material in development to help these clients identify and avoid potential liability risks.