Miley Cyrus has filed her first response to a lawsuit claiming her “Flowers” infringes on the copyright of Bruno Mars' “When I Was Your Man,” arguing that the case has a “fatal flaw”: that Mars et al. his co-writers chose not to sue.
Filed in September, the lawsuit claims the chart hit stole several elements from the previous song and “wouldn't exist” without it. But it wasn't filed by Mars — the suit was filed by an entity called Tempo Music Investments that bought the rights to one of his co-writers.
In her first response to the allegations on Wednesday, Miley's lawyers said the complete lack of involvement by Mars and two other co-writers was not a procedural quirk in the case, but rather a “fatal flaw” that required the outright dismissal of the treatment.
“The plaintiff no doubt [says] that she acquired her copyright rights to 'When I Was Your Man' from only one of the four co-writers of that musical composition,” Cyrus' lawyers write. “This is a fatal and incurable defect in plaintiff's claim.”
Replaced by Peter Anderson of law firm Davis Wright Tremaine, Cyrus argues that Tempo's acquisition of a “partial interest” in the songwriter Philip Lawrence gave the company only “non-exclusive rights” to the song. Under federal copyright law, her lawyers say such limited rights do not give him a “right” to sue — a crucial condition for any lawsuit in the US legal system.
“Plaintiff is bringing this copyright infringement action alone — without any of the co-authors or other owners of this musical composition,” Anderson writes. “Without the consent of the other owners, the grant of rights by a single co-owner is not effective.”
Responding to these arguments of Cyrus, the lead counsel of Tempo Music Alex Weingarten he said Bulletin board on Thursday that her lawyers' proposal was “intellectually dishonest” and that the group clearly had the right to continue the lawsuit.
“They're trying to make bogus technical arguments because they don't have a substantive defense to the case,” said Weingarten, an attorney at the firm Willkie Farr. “We are not a contractor. we are the copyright holder. The law is clear that we have the right to enforce our interest.”
“Flowers,” which spent eight weeks atop the Hot 100, has been tied to “Your Man” since its release in January 2023. Many fans immediately saw Cyrus' track as a “response song,” with lyrics that the song of Mars was clearly referring to them. The reason, according to an Internet manager, was that “Your Man” was a favorite of Cyrus' ex-husband. Liam Hemsworth – and her hints were a nod to their divorce.
When “Flowers” was first released, legal experts said Bulletin board that Cyrus likely wasn't infringing copyright simply by using similar lyrics to respond to the previous song — a time-honored music industry tradition used by songs from Lynyrd Skynyrd's “Sweet Home Alabama” to countless rap diss records.
But Tempo sued in September, claiming that “Flowers” had lifted several elements beyond the clap-back lyrics, including “melodic and harmonic material”, “pitch ending pattern” and “bass-line structure”. Case said it was “undeniable” that Cyrus' hit “wouldn't exist” if it weren't for “Your Man.”
In Wednesday's response, Cyrus' lawyers also took aim at the substance of those claims, arguing that the two songs show “striking differences in melody, chords, other musical elements and lyrics.” They say the songs may have “slight” similarities, but “none of which are copyrighted.”
“The Songwriter Defendants categorically deny copying and the elements allegedly copied are random, scattered, unprotectable ideas and musical building blocks,” Anderson writes.
But the filing mostly left those arguments for another day, instead focusing on the requirement that only “exclusive” copyright owners can bring infringement suits — a rule that Cyrus' lawyers say exists for a “simple” reason .
“In the case of joint works, co-authors jointly own the exclusive intellectual property rights, each holding a non-exclusive interest in the undivided whole,” they write. “As a result, an individual co-author of a copyright interest, acting alone, cannot assign or license exclusive rights because those rights also belong to the co-creators of the assignor or licensor.”
