On September 16th, 2024, Tempo Music Investments (TMI), a proprietary music rights acquisition platform, filed a suit in the Central District of California’s Western Division claiming that pop icon Miley Cyrus’ song “Flowers” infringes on the copyright of “When I Was Your Man,” a 2013 pop hit written by Bruno Mars, Philip Lawrence, Ari Levine, and Andrew Wyatt. “Flowers” was released by Cyrus January 2023.
TMI owns a share of the copyright of “When I Was Your Man” because it purchased the catalog of Philip Lawrence, one of the song’s co-writers, in 2020. At its peak, “When I Was Your Man” ascended all the way to number 1 on the Billboard Hot 100 charts.
“Flowers,” the lead single to Cyrus’ eighth studio album “Endless Summer Vacation,” earned Cyrus her first career Grammy Award for Best Pop Solo Performance. The track also earned Cyrus the Grammy award for Song of the Year in 2024, which is one of the Grammys’ most esteemed awards.
In the lawsuit, TMI alleges that Cyrus’ “Flowers” has “striking similarities” to “When I Was Your Man.” The suit states that “Flowers” mimics “the melodic pitch design and sequence of the verse, the connecting bass-line, certain bars of the chorus, certain theatrical music elements, lyric elements, and specific chord progressions” of “When I Was Your Man.” The suit goes on to claim that Flowers “would not exist without ‘When I Was Your Man.’”
In addition to accusing Cyrus of copyright infringement, the lawsuit also accuses music streaming services including, but not limited to, Apple, Amazon, and Soundcloud for distributing Cyrus’ song. TMI also lists numerous other defendants such as Disney, Target, and Walmart. In total, the suit lists 29 defendants. Notably, Mars is not listed as a party in the suit. TMI seeks an unspecified amount of monetary damages and an order blocking the alleged infringing activity.
For artists and other creators, this case provides insight into how a court may potentially evaluate TMI’s claim and others like it.
Step #1: TMI Must Show a Valid Copyright in “When I Was Your Man”
To prove a copyright infringement claim, TMI must first show that it owns a valid copyright to the song. Here, the musical composition was registered in the United States Copyright Office in 2013 (Registration Nos. PA0001850617, PA0001869828, PA0001852243, and PA0001834773). Thus, when TMI purchased a share of Philip Lawrence catalog in 2020, it accordingly acquired a copyright interest in the song as well.
Step #2: TMI must Show That Defendants Had Access to “When I Was Your Man” Prior to Creating and Exploiting “Flowers”
Regarding the claim against Cyrus specifically, the suit highlights that Mars performed “When I Was Your Man” at the iHeartRadio Music Festival in Las Vegas, Nevada, in September 2013, where Cyrus also appeared and performed her hit song “Wrecking Ball.” Additionally, TMI holds that “When I Was Your Man” was widely available for online purchase, on music streaming platforms, and was frequently played by radio stations across the country. Accordingly, it is unlikely Cyrus can refute this element of a copyright infringement claim.
Step #3: TMI Must Show that “Flowers” is Substantially Similar To “When I Was Your Man”
This is where the crux of this claim, and others like it, lies. Here, TMI claims that “Flowers” intentionally copies “When I Was Your Man.” However, in copyright law, there is a distinction between intentional copying and mere inspiration. The former is barred under copyright law while the latter can be allowable. Here, the narrative of “When I Was Your Man” is hardly original. It tells the story of Mars’ heartbreak and regret from letting his lover get away. Thus, TMI will likely have a difficult time proving that the narrative of “Flowers” copies “When I Was Your Man” given that identical or similar narratives are frequently expressed in other songs.
As a result, TMI focuses much of its argument on the alleged similarity between the songs’ melody, harmony, and lyrics. Specifically, TMI states that “The melody (single lines of music) and harmony (chords and chord progressions) of the chorus in ‘Flowers’ are substantially similar to those of the verse in ‘When I Was Your Man.’ Indeed, the opening vocal line from the chorus in ‘Flowers’ begins and ends on the same chords as the opening vocal line in the verse of ‘When I Was Your Man.’” This viral Tik Tok video offers a good representation as to what TMI is likely trying to highlight in its claim. Although the narrative of “When I Was Your Man” are unoriginal, the exact lyrical similarities are clear.
Given that this is Hollywood, it should be no surprise that there is a romantic conspiracy associated with the suit. Rumor has it that Bruno Mars performed “When I Was Your Man” at Cyrus’ wedding celebration with Liam Hemsworth in 2018. It’s alleged that Cyrus intentionally released “Flowers” as a jab at her ex-husband after the couple officially divorced in 2020.
If TMI successfully carries its burden showing that “Flowers” is substantially similar to “When I Was Your Man,” is Cyrus doomed? Not necessarily. There are multiple exceptions and defenses that Cyrus can present to avoid copyright infringement.
Defense #1: Fair Use
One of the defenses Cyrus will likely use is the Fair Use defense. Essentially, the Fair Use defense permits limited use of copyrighted material without permission from the copyright holder. Key factors a court or jury consider in a fair use defense analysis are: (1) the purpose and character of the use, such as whether the use is for commercial purposes; (2) the nature of the copyrighted work, such as whether the work is of a factual or creative nature; (3) the amount and substantiality that the alleged infringing work takes from the original work; and (4) the effect the new use of the work will have on the market, such as whether the new use harms the market for the original work. A fair use analysis is a case-by-case analysis in which no one factor is considered dispositive.
Defense #2: Transformative Use
Another likely defense Cyrus will deploy is a Transformative Use defense. The Transformative Use defense is an application of the Fair Use doctrine. In short, the Transformative Use doctrine applies when a new work (in this case “Flowers”) adds novel expression, meaning, or message to the original work (“When I Was Your Man”), thus transforming the original work rather than merely copying it. The new expression or meaning of the work in question must provide commentary, criticism, parody, or a different perspective on the original work. Given the rumored backstory behind why Cyrus created the song, this could be a strong argument. In other words, Cyrus could argue that “Flowers” is a response of sorts to “When I Was Your Man,” thus creating a different meaning and perspective than the original work.
Defense #3: Conjuring Up
If a new work imitates or references an original work in a way that comments on or critiques the original work, it may be protected under the Fair Use. Although such an argument is usually made in cases involving parody works, a judge or jury could recognize that “Flowers” is a clear response, or comment, to “When I Was Your Man.” For example, Mars’ song is about a man who regrets not doing enough to keep his woman in love while Cyrus’ song is a response of empowerment, essentially saying “I don’t need a man to do any of the things that Mars sang about because I can do it myself.” Accordingly, Cyrus would have needed to conjure up Mars’ initial statement for her to make a response. This is the very nature of speech permitted under a parody analyses and thus a similar analysis could apply here.
Defense #4: Effects on the Market
Another major element of a fair use analysis is the effect that permitting the new work would have on the market, in this case the broader songwriting and entertainment industry. Here, the lawsuit admits that the Mars’ single enjoyed increased streaming performance following the release of “Flowers.” Thus, Plaintiff seems to undercut their own infringement argument because the release of “Flowers” actually benefited, and did not harm, the market for “When I Was Your Man.”
Defense #5: Chords and Melodies
In copyright infringement cases involving songs, the similarity of chord progression and melodic lines can be relevant but are rarely dispositive in proving infringement. Copyright law primarily protects the original and creative expression of a song, and courts often look for similarities in the more specific, original elements of the work. The mere use of similar chord progressions or melodic structures, which are often common and widely used in many songs, is typically insufficient on its own to establish infringement.
The most likely outcome of this case is that the two sides will settle. Unfortunately, many acquisition platforms such as TMI devote substantial resources to seeking infringing acts with the hope of filing suit and eventually settling for a nice sum. Although this may or may not be the TMI’s strategy in this instance, the most likely result is an out-of-court settlement for an undisclosed amount. Nevertheless, this case shows the importance of understanding copyright law in the context of the music industry as a whole.
