Miley Cyrus has filed her first response to a lawsuit claiming her “Flowers” infringes the copyright to Bruno Mars’ “When I Was Your Man,” arguing the case has a “fatal flaw”: That Mars and his other co-writers chose not to sue.
Filed in September, the lawsuit claims the chart-topping hit stole numerous elements from the earlier song and “would not exist” without it. But it wasn’t filed by Mars — the case was lodged by an entity called Tempo Music Investments that bought out the rights of one of his co-writers.
In her first response to the allegations on Wednesday, attorneys for Miley said that the total lack of involvement from Mars and two other co-writers was not some procedural quirk in the case, but rather a “fatal flaw” that required the outright dismissal of the lawsuit.
“Plaintiff unambiguously [says] that it obtained its claimed rights in the ‘When I Was Your Man’ copyright from only one of that musical composition’s four co-authors,” write Cyrus’ attorneys. “That is a fatal and incurable defect in plaintiff’s claim.”
Repped by Peter Anderson of the law firm Davis Wright Tremaine, Cyrus argues that Tempo’s acquisition of a “partial interest” from songwriter Philip Lawrence gave the company only “non-exclusive rights” to the song. Under federal copyright law, her lawyers say such limited rights don’t give him “standing” to sue – a crucial requirement for any lawsuit in the U.S. legal system.
“Plaintiff brings this copyright infringement action alone — without any of that musical composition’s co-authors or other owners,” Anderson writes. “Without the consent of the other owners, a grant of rights from just one co-owner does not confer standing.”
Responding those arguments from Cyrus, Tempo Music lead counsel Alex Weingarten told Billboard on Thursday that the motion from her attorneys was “intellectually dishonest” and that the group clearly had standing to pursue the lawsuit.
“They’re seeking to make bogus technical arguments because they don’t have an actual substantive defense to the case,” said Weingarten, an attorney at the firm Willkie Farr. “We’re not an assignee; we’re the owner of the copyright. The law is clear that we have the right to enforce our interest.”
“Flowers,” which spent eight weeks atop the Hot 100, has been linked to “Your Man” since it was released in January 2023. Many fans immediately saw the Cyrus track as an “answer song,” with lyrics that clearly referenced those in the Mars song. The reason, according to internet sleuths, was that “Your Man” was a favorite of Cyrus’ ex-husband Liam Hemsworth – and her allusions were a nod to their divorce.
When “Flowers” was first released, legal experts told Billboard that Cyrus was likely not violating copyrights simply by using similar lyrics to fire back at the earlier song – a time-honored music industry tradition utilized by songs ranging from Lynyrd Skynyrd’s “Sweet Home Alabama” to countless rap diss records.
But Tempo sued in September, claiming “Flowers” had lifted numerous elements beyond the clap-back lyrics, including “melodic and harmonic material,” “pitch ending pattern,” and “bass-line structure.” The case said it was “undeniable” that Cyrus’ hit “would not exist” if not for “Your Man.”
In Wednesday’s response, attorneys for Cyrus also take aim at the substance of those allegations, arguing that the two songs show “striking differences in melody, chords, other musical elements, and words.” They say the songs might share a “few” similarities but “none of which is protected by copyright.”
“The songwriter defendants categorically deny copying, and the allegedly copied elements are random, scattered, unprotected 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 file infringement lawsuits – a rule that Cyrus’ lawyers exists for a “simple” reason.
“In the case of joint works, the co-authors are joint owners of the exclusive copyright rights, each owning a non-exclusive interest in the undivided whole,” they write. “As a result, a single co-author of a copyright interest, acting alone, cannot assign or license exclusive rights because those rights also are owned by the assignor’s or licensor’s co-authors.”
