Miley Cyrus, Bruno Mars Songs’ Parallels Sit at Heart of IP Case

A lawsuit accusing Miley Cyrus of infringing the copyright of Bruno Mars’ 2013 piano ballad “When I Was Your Man” with her hit “Flowers” a decade later centers on claims likely to keep the case kicking around in court.

Tempo Music Investments LLC’s lawsuit will have to prove Cyrus and “Flowers” co-writers Michael Pollack and Gregory Hein copied Mars’ track by showing “substantial similarity” between the songs.

There’s a high bar to demonstrate the extent to which the same protectable musical elements appear in both songs, and attorneys tracking the case said they’re skeptical of Tempo Music’s initial arguments citing what makes Cyrus’ song too similar to Mars’. If the company can show substantial similarity, though, some said Cyrus, her co-writers, and the lineup of other high-profile corporate defendants—which includes Sony Music Entertainment and Target Corp.—could turn to fair use, a relatively rare occurrence in music copyright disputes.

Despite the high bar of proof, it can be difficult to swat away suits with a motion to dismiss early in litigation—particularly when some similarities do exist—Vanderbilt University law professor Joseph Fishman said.

“Even for a claim that is ultimately destined to be dismissed, it’s just very hard to do it at an early stage right on the face of the complaint,” Fishman said.

Tempo Music says it’s been “irreparably harmed” by Cyrus’ and her co-writers’ alleged infringement because it’s lost out on licensing fees. The company, which purchased a percentage of the copyright for “When I Was Your Man” in 2020 from one of Mars’ co-writers, is seeking $150,000 per infringement in statutory damages.

The complaint argues “Flowers” has also decreased the value of Mars’ track, though a footnote acknowledges on-demand streaming for Mars’ song “reportedly rose from 4.5 million to 5.3 million,” the week after “Flowers” was released.

“The aggrieved party is highlighting that the allegedly infringing work increased the popularity of the plaintiff’s work,” Fishman said. “That is not something you usually see asserted by the plaintiff in a case like this.”

The complaint cites music industry magazine Billboard’s reporting attributing the rise in streaming to “chatter over the relationship between the two songs.”

Since “Flowers” was released, fans have speculated that Cyrus’ song alludes to Mars’ ballad expressing regret about a breakup. Mars sings, “I should’ve bought you flowers” in his chorus, while Cyrus proclaims, “I can buy myself flowers.” Pollack, however, “refused to comment” on the songs’ alleged similarities in a Billboard interview last March, the complaint said.

If “Flowers” is a reply to Mars’ song, it would hardly be a first. Songwriters responding to each other in their work isn’t new, Lloyd & Mousilli senior trademark attorney Rachael Dickson said. She offered the example of Woody Guthrie’s “This Land is Your Land,” written in 1940 as a response to Irving Berlin’s “God Bless America.”

Counsel for Tempo Music and representatives for Cyrus, Pollack, Hein, and Mars didn’t return requests for comment for this story.

Quantifying ‘Similarity’

Tempo Music’s complaint seems to follow in the footsteps of the successful copyright infringement lawsuit the family of Marvin Gaye brought against Pharrell Williams and Robin Thicke over similarities between their song “Blurred Lines” and the late soul singer’s single “Got to Give It Up,” said Harvard University law professor Rebecca Tushnet.

Like in the previous case, Tempo Music’s complaint points to “a whole bunch of little similarities” seeming to add up to an overall allegedly stolen “vibe,” Tushnet said.

“They’re sort of taking a bunch of stylistic elements and saying, ‘They share so many, it must be copied,’” Tushnet said. “That’s not a road I think we should be going down in music, in part because, frankly, you shouldn’t find infringement where it requires an expert to walk you through and say, ‘Oh, here’s how these are similar.’”

A California federal jury determined in 2015 Williams and Thicke infringed the copyright of “Got to Give It Up,” and a judge issued a $5.3 million judgment. An appellate court later largely affirmed the verdict.

Tempo Music’s complaint, similarly, claims “Flowers” duplicates “numerous melodic, harmonic, and lyrical elements” from “When I Was Your Man.”

Those are mere “generic statements,” said Howard King, managing partner of King, Holmes, Paterno & Soriano LLP, who was the lead trial counsel for Williams, Thicke, and the other defendants in that case.

The typical and strongest defense to these kinds of allegations, King said, is to argue the songs aren’t significantly similar.

Fishman said he expects the defendants to argue that “dropping in significant words into lyrics that are thematically really different” isn’t sufficient “to support an accusation of substantial similarity.”

Fair Use

While commentary is often thought of as a type of fair use, the concept is rare in songwriting disputes, which “almost never involve a real fair use argument,” Fishman said.

“In these this-song-is-too-similar-to-that-song cases, fair use is almost never seriously litigated by the defendant,” he said.

That’s in part because copyright law “sometimes struggles with subtlety,” he said. “If you are going to make a parody of an earlier work, you’re often best off if it’s a parody that hits people over the head, so everybody knows this is a parody.”

Santa Clara University law professor Edward Lee’s research confirmed that observation regarding fair use defenses: 91% of decisions in musical infringement cases from 1978 through January 2018 didn’t discuss fair use at all. No decision has held so far that copying musical notes or elements is fair use, Lee found. He called the phenomenon “fair use avoidance.”

Still, Lee said fair use could be helpful to the case’s defendants at trial, based on his research, if they lean into a strategy presenting “Flowers” as a response to “When I Was Your Man.”

Participants in a 2021 study Lee co-authored found no liability more frequently when fair use was invoked, compared with denying infringement, when examining the same case.

“This would be an excellent vehicle to raise the fair use defense,” Lee said.

The case could set an important precedent recognizing a “retort” song as a protected parody or critique, he said,
noting the two songs convey completely different views of a breakup.

“That’s what makes it engaging,” Lee said. “It’s not a repetition of the same song and, certainly, I think, not the repetition of the same ideas.”