Miley Cyrus Tests Copyright Transfer Rules in ‘Flowers’ Lawsuit

Miley Cyrus’ bid to kill a suit accusing her song “Flowers” of copying leans on a unique quirk in Ninth Circuit precedent that she argues limits who can bring copyright-infringement lawsuits.

Cyrus’ motion to dismiss allegations she ripped off Bruno Mars’ “When I Was Your Man” is set for a hearing Jan. 27 in the US District Court for the Central District of California. Tempo Music Investments sued after buying a stake in Mars’ hit from one of the four songwriters. Cyrus argued that because Tempo purchased one cowriter’s share without the express consent of the others, it doesn’t have the right to sue.

If Cyrus’ argument is successful, lawyers say it would diminish the value of copyrights jointly owned by multiple authors and make suing impossible without every stakeholder’s participation. It comes as lawsuits accusing companies training artificial intelligence on copyrighted works without permission are moving through courts and after social media companies have been hit with high-profile copyright suits.

It would drive a knife into the licensing economy for creative works, said Kevin Casini, adjunct professor at Quinnipiac University School of Law.

“If you can’t enforce your copyright without having 100% ownership on the same side of a lawsuit, the next argument that will come from the tech sector would be, ‘Well, then you can’t license the fractional shares,’” Casini said. “If you can’t license them, the licensing structure falls apart completely.”

Daniel Schacht, California-based IP attorney at Donahue Fitzgerald LLP, said Cyrus’ position would transport the music industry back to the first version of the Copyright Act from 1909, when rights could be transferred only as a whole, not in shares.

“The sale of a copyright would be less valuable because you couldn’t sue on your share unless you had 100%,” he said.

‘Problematic’ Precedent

Under the Copyright Act, only the “legal or beneficial owner of an exclusive copyright"—which the statute has defined since 1976 to include co-creators of a “joint work"—can sue for infringement.

Co-owners of songs have pursued countless infringement lawsuits in other hubs of music litigation such as the US Court of Appeals for the Second Circuit. But in California, two Ninth Circuit precedents—2008’s Sybersound Records Inc. v. UAV Corp. and 2020’s Tresóna Multimedia v. Burbank High School Vocal Music Association—muddied the waters of who exactly can sue for copyright infringement when a co-owner has sold their rights in a work.

The Tresóna and Sybersound decisions both drew limits around the types of rights transferred when a co-owner of a copyright licenses a song. The US Court of Appeals for the Ninth Circuit ruled each plaintiff had only a non-exclusive license for the songs they were suing over, because they didn’t acquire their rights from all the original copyright owners. Since they didn’t hold an exclusive license, the court ruled in both cases, the plaintiffs hadn’t obtained the right to sue a third party for infringement.

Referencing Sybersound, Cyrus said each copyright owner owns only a non-exclusive right “in the undivided whole” for a work created by multiple authors, which together forms the exclusive right to the work.

“They do have a foothold in this Ninth Circuit precedent for their argument—it’s just that the precedent seems problematic,” said Jennifer Jenkins, IP law professor at Duke University.

Cyrus extended the logic from Tresóna and Sybersound a step further, Schacht said.

Unlike the plaintiffs in those cases, Tempo Music Investments said it purchased all of Phillip Lawrence’s rights in “When I Was Your Man,” not merely a license or subset of those rights. But, Cyrus’ motion said, “without the consent of the other owners, a grant of rights from just one co-owner does not confer standing on the assignee even if the grant purports to transfer exclusive rights.”

Schacht called the two Ninth Circuit precedents a “house of cards” built on a “questionable logical setup.”

“We’re seeing somebody saying, ‘Look, let’s apply that logic all the way to, in this case, an assignee of all the rights,’” he said.

Tempo’s attorneys blasted the argument for dismissal, saying it’s “blackletter law” that one co-owner can sue without the others. If Cyrus’ argument were to win, Tempo said, it would “invent a new rule that a co-author can only transfer less than his or her full copyright interest.”

Cyrus’ attorneys at Davis Wright Tremaine LLP and Tempo’s at Willkie Farr and Gallagher LLP didn’t respond to requests for comment.

Looking Ahead

Only two individuals among the other defendants named in the lawsuit—which include Sony Music Publishing, Concord Music Publishing, Apple Inc., iHeart Media Inc., and dozens of others—joined Cyrus’ motion to dismiss.

That’s likely because those companies—which include several music publishers—own fractional shares of numerous songs themselves, Jenkins said. Winning the argument put forth in the motion to dismiss would undermine their own stakes in those works.

“For many of the defendants there, that kind of result could actually come back to haunt them in the future when they’re on the other side of a lawsuit,” Jenkins said.

Sony, Concord, Apple, and iHeart Media didn’t respond to requests for comment.

Whatever the result in the district court, if the case is appealed, the Ninth Circuit could use it as a chance to “un-muddy” its precedent, Casini said.

But a win for Cyrus’ position at the appellate level would “fundamentally affect the entire entertainment industry, in the way lawsuits are handled, in the way contracts are formulated,” said Sartouk Moussavi from Thompson Coburn LLP.

“It would cast doubt on many prior copyright transactions, some of which were for very high sums of money,” he said.

It would also trigger a split with the Second Circuit.

“At that point, it would probably be petitioned to the Supreme Court,” Casini said. “There would be a pretty stark differentiation between the two most prominent circuits that deal with these types of controversies.”

The case is: Tempo Music Investments LLC v. Cyrus, C.D. Cal., No. 2:24-cv-07910.