The Copyright Case Against Miley Cyrus' Flowers Could Be a Landmark Fair Use Case
The recent copyright case filed against Miley Cyrus for her song "Flowers" has stirred a significant buzz in the media. As an intellectual property attorney with extensive experience in fair use litigation, I want to shed light on why this case, although captivating from a public and media standpoint, is likely to fail.
The controversy began when the copyright owner of Bruno Mars' song "When I Was Your Man" filed a lawsuit against Miley Cyrus, alleging that "Flowers" infringed on their song's copyright. The suit is not brought by Bruno Mars himself, but rather the corporate entity holding the song's rights. They claim that "Flowers" has a similar melody and harmony to "When I Was Your Man," suggesting possible infringement.
To substantiate their arguments, the complaint outlines numerous parallels between the two songs. These include similar harmonic structures, melodies, and even thematic content in the lyrics. I'm not a musician, but I don't see that many similarities in what is cited in the complaint. Likewise, I don't see similar themes for the lyrics that would be protected by copyright.
Even if there are similarities between the two songs, though, the case still fails. The Miley Cyrus song "Flowers" is a classic example of copyright fair use, which is pivotal in copyright infringement defenses. Under copyright law, fair use allows limited use of copyrighted material without requiring permission from the rights holders. And this isn't an uncommon practice. Many artists have leaned on fair use to create transformative works, which significantly differ from or comment on the original pieces.
The U.S. Supreme Court's case, Campbell v. Acuff Rose, is often cited when discussing fair use. Here, the court ruled in favor of 2 Live Crew's parody song "Pretty Woman," which borrowed prominently from Roy Orbison's classic "Oh, Pretty Woman." The essence of the ruling revolved around the transformative nature of 2 Live Crew's work, which offered commentary on the original. In the Supreme Court's words:
2 Live Crew's song reasonably could be perceived as commenting on the original or criticizing it, to some degree. 2 Live Crew juxtaposes the romantic musings of a man whose fantasy comes true, with degrading taunts, a bawdy demand for sex, and a sigh of relief from paternal responsibility. The latter words can be taken as a comment on the naivete of the original of an earlier day, as a rejection of its sentiment that ignores the ugliness of street life and the debasement that it signifies.
Miley Cyrus' "Flowers" likewise offers a transformative take on neglect. Bruno Mars' song portrays regret from the viewpoint of a man who neglected his lover. Cyrus in contracts projects the perspective of a neglected lover who has moved on from the neglect. This thematic inversion aligns closely with the Supreme Court's definition of transformative use in Acuff Rose.
Moreover, like 2 Live Crew, Cyrus' song extracts just enough from the Bruno Mars' work to evoke that reflection, without replicating it to the extent that one could bypass "When I Was Your Man" entirely. As such, both songs stand as distinct entities, and listeners appreciate them for their unique narratives and emotional sentiments.
Miley Cyrus's song is exactly why we have fair use.
The lawsuit against Miley Cyrus for "Flowers" starkly highlights common misunderstandings about copyright infringement and fair use. As the case progresses, it will be interesting to see whether it advances past the preliminary stages. Nonetheless, it stands as an educational benchmark on the critical interplay between creativity and copyright law.
Disclaimer: This is not legal advice; it is just an informative post