In September, news broke that Tempo Music Investments LLC filed a lawsuit against Miley Cyrus for copyright infringement. Tempo Music, who acquired ownership rights in the 2012 song “When I Was Your Man” by Bruno Mars, claims that Cyrus’ 2023 hit song “Flowers” copied “When I Was Your Man” without permission. Notably, Bruno Mars himself has not joined Tempo Music in suing Cyrus.
The case highlights the complex intersection of intellectual property and music. Under copyright law, certain works are protectable such as literary works like novels and poems, audiovisual works like movies and tv shows, and of course, music once put into a fixed medium. Each protected work comes with certain rights that are exclusive to the copyright owner, meaning that no one else can exercise these rights without the owner’s permission. Included in these exclusive rights are the right to make copies of the work, the right to perform the work, and the right to authorize derivative works based on the protected work.
Ownership Rights
While Bruno Mars is credited as a performing artist on “When I Was Your Man,” and listeners hear his voice on the recording, he is only one of the song’s writers. Phillip Lawrence, Ari Levine, and Andrew Wyatt are all credited as songwriters along with Mars. However, in 2020 Tempo Music acquired Lawrence’s ownership rights in the song.
Generally, a song’s writers own the musical composition and the copyright to it. Absent an agreement saying otherwise, copyright ownership is split evenly among the writers. For example, two songwriters are presumed to split copyright ownership 50/50. With these ownership splits, each writer is entitled to their respective share of royalties and other monetization, but each has exclusive rights to the work as a whole. In the case of 50/50 ownership, one songwriter may have written the chorus, and the other writer may have written the bridge, but they are each entitled to the whole song. When making a derivative work—in this case, a song based on another song—a person must obtain permission from each songwriter before creating the new work. Here, Tempo Music is claiming that “Flowers” is based on “When I Was Your Man” making Cyrus’ song a derivative work, and because Cyrus did not seek permission from Tempo Music, Tempo maintains that Cyrus has infringed on its exclusive right to make and authorize a derivative work. While it does not appear that Bruno Mars or the other writers have given permission to use their song, they also have not claimed infringement.
The Infringement Claim
In the complaint, Tempo Music claims that there are undeniable similarities between the lyrics, melodic phrasing, and chord progression in “Flowers” and “When I was Your Man.” Lyrically, “When I Was Your Man” is a ballad sung from the perspective of a man who laments losing his love:
That I should’ve bought you flowers and held your hand
Shoulda gave you all my hours when I had the chance
Take you to every party, ’cause all you wanted to do was dance
Now my baby’s dancin’, but she’s dancin’ with another man
A decade later, Cyrus in “Flowers” sings an up-tempo anthem of empowerment and self-reliance:
I can buy myself flowers
Write my name in the sand
Talk to myself for hours
Say things you don’t understand
I can take myself dancing I can hold my own hand
Yeah, I can love me better than you can
Looking to the melody and chord progressions, Tempo Music argues that Cyrus clearly copied Mars’ song. Tempo alleges that the verses of “When I Was Your Man” and the chorus of “Flowers” follow such similar harmonic and melodic phrasing and that Cyrus’ song “copies extensively from ‘When I Was Your Man.’” While fans have speculated that the contemporary song is a “response” to Mars, Cyrus and her team have not acknowledged as much.
Musical Composition vs. Sound Recording
Copyright protection in a song can be complicated, but it is important to make the distinction between the works at play. Every song has two copyrightable works: the musical composition and the sound recording. The musical composition is the underlying musical work typically put into some sort of music notation like sheet music. A sound recording (also known as the master recording) is the original recording of the musical composition. This is usually the version of the song released to the public that listeners hear on albums, radio, and streaming platforms. Generally, a music copyright infringement claim is based on the infringement of either the musical composition or the sound recording, though in some cases both works may be infringed upon. In alleging that Cyrus copied lyrics, melodies, and harmonies from “When I Was Your Man,” Tempo claims Cyrus copied the musical composition.
Next for the Case
In addition to financial compensation, Tempo is seeking to permanently block Cyrus from reproducing, distributing, or publicly performing “Flowers.” Just last week, Cyrus filed a motion to dismiss the lawsuit denying any infringement. Tempo will have an opportunity to overcome the motion to dismiss, but if it cannot, the case will be dismissed.
Unlike more recent music copyright cases that have focused on the arguable similarities of song styles and genres, like the dispute between Robin Thicke and the Marvin Gaye estate, this case brings about a more classic case of alleged copying of melodies and harmonies. The outcome is less likely to change the landscape of music copyright, but the details are nonetheless interesting.
