News broke on 17 September that Miley Cyrus—former incognito pop-star for Disney Channel turned Grammy-winning solo artist—is being sued. The dispute concerns similarities between Cyrus’ chart-topping song Flowers and Bruno Mars’ 2013 hit When I Was Your Man. The lawsuit was filed in Los Angeles’ federal court on 16 September by music rights investment firm Tempo Music—purchasers of a share of rights in Mars’ When I Was Your Man.
Who is involved in the suit?
The defendants named in the lawsuit include Cyrus, her co-writers on the track Gregory Hein and Michal Pollack, and a suite of high-profile music publishers. For their part, Tempo Music is a self-described ‘investment platform for premium music rights’, backed by a powerful collaboration between Warner Music Group and private equity firm Providence. Interestingly, Mars himself has virtually nothing to do with the lawsuit.
Did the writers of Flowers copy When I Was Your Man?
Tempo Music claims in court documents: ‘any fan of Bruno Mars’ ‘When I Was Your Man’ knows that Miley Cyrus’ ‘Flowers’ did not achieve all of that success on its own. ‘Flowers’ duplicates numerous melodic, harmonic, and lyrical elements…including 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…it is undeniable based on the combination and number of similarities between the two recordings that ‘Flowers’ would not exist without ‘When I Was Your Man’.’
What makes this case fascinating is that there is little doubt that the writers of Flowers—Cyrus, Gregory Hein, and Michal Pollack—did intentionally reference Mars’ work. The inspiration was widely reported at the time of Flowers’s release in January 2023. Flowers paraphrases lyrics from When I Was Your Man’s chorus, and is broadly believed to be a divorce song about her split from Liam Hemsworth—sources report that Hemsworth serenaded Cyrus with Mars’ song several times during their ill-fated relationship, including at their wedding. Billboard even noted the lyrical similarities in 2023, however stated that the writers of When I Was Your Man didn’t need to be credited in Flowers as it didn’t ‘sample or interpolate any melodic elements from the song.’ Esquire chimed in to add that ‘Miley’s responses to Bruno are just lyrical allusions…musically, she doesn’t really borrow anything else.’ Cyrus has never publicly confirmed her inspirations. However, not everybody agreed that only lyrics were borrowed—The Independent even incorrectly reported that ‘the self-love anthem samples Bruno Mars’ 2012 hit “When I Was Your Man.”’
Regardless, this isn’t the first time that Cyrus has landed in hot water over lyrical copyright infringement. In 2020, the artist settled a $300 million USD suit over her hit song We Can’t Stop and its similarities to the lyrics of Jamaican songwriter Michael May.
Where’s the line between inspiration and copyright infringement?
While copyright law in the U.S. differs from Australia, it is likely the case will hinge on similar legal principles as can be observed in local copyright law. Mainly, the question of whether the work is substantially similar to Mars’. Similar to Australian copyright law, permission from the copyright owner(s) is needed before someone is legally permitted to ‘use a “substantial” part of a copyright protected work.’ ‘Substantial’ doesn’t just mean length—it refers to ‘anything that is distinctive or essential to the work’. If the parties don’t reach a private settlement regarding the matter, the ‘substantial part’ test will be applied and assessed by the Court.
What’s next?
It will be interesting to follow the case in Los Angeles’ federal court as team Flowers attempts to mount a defence to the plaintiff’s claim. Having undeniably taken some inspiration from Mars’ work, even purely lyrical, will Cyrus & Co elect to settle the suit as in the dispute with Michael May? Or will they try to defend their own original artistry, and draw a line in the sand for artistic freedom? Either way, the Sanicki Blog will keep you posted as the case progresses.