IP Law Daily, COPYRIGHT NEWS: Music publisher takes a shotgun to Flowers, (Sep 17, 2024)

By Matthew Hersh, J.D.

The part owner of a Bruno Mars classic takes on Miley Cyrus, her songwriters, record labels and music publishers, and dozens of other alleged distributors and collaborators.

Pop superstar Miley Cyrus duplicated “numerous melodic, harmonic, and lyrical elements” of a 2013 Bruno Mars chart-topper when she released the mega-hit Flowers last year, the owner of a portion of the Bruno Mars song has alleged. The music publisher behind the lawsuit—who is perhaps notably not joined by co-author Mars—takes what can only be described as a shotgun approach to the litigation, naming as co-defendants nearly three dozen individuals and entities allegedly involved in the creation and distribution of the Cyrus song (Tempo Music Investments, LLC v. Cyrus, No. 2:24-cv-07910 (C.D. Cal. Sept. 16, 2024)).

The lawsuit involves two of the world’s most recognizable performers. In 2013, Bruno Mars released the song When I Was Your Man as the third promotional single from his second album, Unorthodox Jukebox. Ten years later, in 2023, Miley Cyrus released the song Flowers. Both songs were massive hits—but that was allegedly not the only similarity between them. Immediately upon the release of “Flowers,” some members of the public claimed to recognize similarities between the two songs. (Two of many homemade mashups of the two songs can be found on YouTube here and here).

The music publisher that owns the rights to a portion the Mars song, through the acquisition of the catalog of joint songwriter Philip Lawrence, brought this lawsuit against Miley Cyrus, her music company and record label, alleging direct and secondary copyright infringement. Notably, the lawsuit also took aim at several dozen other entities allegedly involved in the making or distribution of the song, including streamers such as Spotify, Apple Music, Pandora, and Deezer, retail outlets such as Target, Walmart, and Barnes & Nobles, and several other entities identified only as having participated in some manner in the “production, preparation, distribution, performance, licensing, marketing, promotion, and/or other exploitation” of the Miley Cyrus song.

The complaint asserts one claim of willful copyright infringement against all defendants. It seeks injunctive relief; unspecified damages, including actual damages, lost profits, and statutory damages; an award of costs, interest, and attorney fees.

Commentary: The Miley Cyrus song is widely considered to be a deliberate response to her breakup with actor Liam Hemsworth (among other things, it was released on the day of his birthday). It is also assumed to be a deliberate ode to the Bruno Mars song itself, which (depending on which Hollywood commentator you consult) was either Hemsworth’s favorite song or one that he used to play for Cyrus during their relationship. But that does not necessarily mean that the song infringes under copyright law. Several commentators, include those mentioned in this Billboard article, have opined that the songs are not similar. And to the extent that the song is a deliberate response to the original, there may well be questions of parody or other fair use elements.

It may also be notable that of the four songwriters credited on the Bruno Mars song, including Mars himself, only the rightsholder of one of those songwriters joins this lawsuit.

The Case is No. 2:24-cv-07910.

Attorneys: Alex M. Weingarten (Willkie Farr and Gallagher LLP) for Tempo Music Investments, LLC.

Companies: Tempo Music Investments, LLC

News: Copyright CaliforniaNews