Blooming Controversy: Miley Cyrus’ “Flowers” vs. Bruno Mars’ “When I Was Your Man”

Frances Small, Contributing Member 2024-2025
Intellectual Property and Computer Law Journal

I. Introduction

In 2023, Miley Cyrus’ self-love anthem “Flowers” dominated Billboard charts, became the quickest song to reach one billion streams on Spotify, and earned the artist her first Grammy.[1] Upon the song’s release, fans, musicologists, and legal commentators noted the striking similarities between Cyrus’ “Flowers” and Bruno Mars’ 2013 hit song “When I Was Your Man.”[2] Particularly, the focus seemed to be on the respective choruses of the two songs with Cyrus seemingly responding to the regrets expounded by Mars in his song.[3] For example, Mars’ lyrics include, “I should have bought you flowers … take you to every party, cause all you wanted to do was dance.” Cyrus’ chorus retorts, in parallel rhythm, “I can buy myself flowers … I can take myself dancing.”[4] Fans have speculated that Mars’ hit song was a favorite of Cyrus’ ex-husband, Liam Hemsworth–with her new single as an overt diss to her ex.[5] The buzz resulted in a 20% bump in weekly streams of Mars’ decade-old song following Cyrus’ single.[6] The popularity of Cyrus’ single “Flowers” continued, but any suggestion of crediting Mars and his co-writers or potential copyright issues dissipated until September 17, 2024.[7] On September 17, 2024, Tempo Music Investments filed a copyright lawsuit against Cyrus, her co-writers, record label, and various streaming and retail services.[8]

This article will discuss the lawsuit filed by Tempo Music Investments, Cyrus’ potential defenses, how similar music-related copyright cases have been resolved, and analyze the future of copyright cases with society’s obsession of similar sounding pop music sound bits on social media. Part II provides background on the parties involved in the lawsuit filed, reviews the allegations contained in the complaint, and examines copyright law and the fair use doctrine. Part III discusses Cyrus’ potential defenses, similar artist lawsuits and outcomes, and what the legal landscape looks like for artists in a world of increased popularity of similar sounding pop music bits. Finally, Part IV concludes by analyzing the likely outcome of Tempo Music Investments lawsuit based on the information available at the time of this writing.

II. Background

Who is Tempo Music Investments?

Even more surprising than the infringement suit being filed a year and half after Cyrus’ single’s release, is that Bruno Mars and none of his other co-writers are parties to it.[9] Instead, Tempo Music Investments is the sole plaintiff seeking a permanent injunction enjoining and restraining Cyrus and other listed defendants from infringing plaintiff’s copyright by reproducing, distributing, or publicly performing “Flowers” as well as an unspecified amount of monetary relief.[10] Yet, who is Tempo Music Investments?

In 2020, Tempo Music Investments, a subsidiary of a large private equity firm, Providence Equity Partners, purchased a share of the copyright to Mars’ song from co-writer, Philip Lawrence.[11] Artists such as Bob Dylan and Queen recently sold their catalogs for hundreds of millions of dollars to investment firms rather than to record labels for use of their music for re-release, use in movies, greatest hits compilations, or use of the tracks for their other artists.[12] Increasingly, the music industry is seeing private equity firms and investment companies purchase music catalogs to squeeze every penny out of the recently acquired copyrighted material .[13]

In its September complaint, Tempo Music Investment alleges that any fan of Bruno Mars knows that Cyrus’ “Flowers” success was not achieved on its own, but rather was bolstered by the “numerous melodic harmonic, and lyrical elements” from Mars’ hit song.[14] Further, Cyrus’ single includes similar “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.”[15] The combination of the similarities between the two songs have resulted in Tempo Music Investment bringing this copyright infringement suit supposedly arising out of Cyrus’ unauthorized reproduction, distribution, and exploitation of “When I Was Your Man.”[16] In addition to Cyrus, there are 28 other listed defendants ranging from Cyrus’ co-writers to streaming platforms and retailers who have also engaged in the production and distribution of “Flowers.”[17] Seemingly, Tempo Music Investments is seeking a piece of the proceeds that have amassed in the wake of Cyrus’ resounding success.

Elements of Copyright Infringement

A plaintiff seeking to prevail in a copyright infringement lawsuit must establish two elements: (1) ownership of a valid copyright, and (2) that the defendant copied constituent elements of a work that are original.[18] Originality is a constitutionally mandated prerequisite for copyright protection and is proven through a plaintiff’s showing of the independent creation of the work, and that such work possesses at least some modicum of creativity.[19] To satisfy the first element, the plaintiff must have a valid copyright.[20] While one does not have to register their work for a copyright to exist, a person must register their work prior to filing an infringement lawsuit.[21] The second element requires the plaintiff to establish enough substantial similarities between the copyrighted material and the defendant’s work.[22] In Arnstein v. Porter, the Second Circuit held that evidence of access is a significant factor in a trier of facts’ analysis as to whether there is evidence of copying by a defendant.[23] If evidence of access and similarities exist, then the trier of facts must determine whether its sufficient to establish copying.[24] However, evidence of access is not dispositive as in its absence, the similarities between the two works must be so striking as to preclude the possibility that plaintiff and defendant independently arrived at the same result.[25]

Bruno Mars and his co-writers registered the musical composition of “When I Was Your Man” in 2013.[26] Tempo Music Investments made a proper purchase of its share of the copyright in 2020, so the first element is satisfied.[27] However, analysis is warranted in assessing whether enough substantial similarities exist between “When I Was Your Man” and “Flowers.” The lawsuit alleges that the chorus of “Flowers” begins and ends on the same chords as the opening verse of Mars’ hit, contains the same melodic units, follows the same 4+4 structural phase design, extensive lyrical similarities, pauses, pitches, and sound that in reviewing its totality shows that Cyrus copied extensively from its copyright material.[28]

Tempo Music Investments further supports its argument by alleging the extensive access that Cyrus had to its copyrighted material through Mars’ performance at the iHeartRadio Music Festival where Cyrus also performed in 2013, the song’s widely available nature online and in-store, the frequency of radio play, and the shared publishers between the two hits.[29]

Fair Use Doctrine

While substantial similarities may exist between the two works in a technical manner, it is not yet dispositive of whether Cyrus infringed on Tempo Music Investment’s copyright because (1) Mars may have provided Cyrus with permission behind the scenes as he is not listed on the lawsuit and/or (2) fair use may be at play.[30] As it stands, neither Cyrus nor Mars have publicly spoken on the lawsuit or whether they had behind-the-scenes conversations resulting in Mars’ blessing for Cyrus’ use.[31] Even without public comment, Cyrus must respond to the lawsuit and raise fair use as an affirmative defense. In reviewing whether the use of the work is fair use, the following factors are to be considered: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit or educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of use upon the potential market for or value of the copyrighted work.[32] No one factor is dispositive as fair use is ultimately established by the totality of the circumstances.

The first factor focuses on the purpose and character of the use of copyrighted material by looking at how the new user plans to use something.[33] Purposes that favor fair use include education and research, while commercial or for-profit purposes weigh against it.[34] The second factor looks to the nature of the original work—whether the work is more factual or creative.[35] If it tends to be more factual, then it lends favor to fair use while more creativity does not.[36] Courts also look to whether the original work was published or not as published material is more likely to be fair use.[37] The third factor is multi-layered by reviewing the amount and substantiality of the portion used.[38] Courts have maintained that “amount” in this factor is proportional to the amount copied and whether something is substantial or central to a work varies across copyright cases.[39] Lastly, the fourth factor looks to the effect of the use on the potential market for, or value of, the source work—more simply put: whether the defendant’s work is substituting a sale that the copyright owner would otherwise make.[40] In Harper & Row, Publishers, Inc. v. Nation Enterprises, the Supreme Court held that the fourth factor was the most important element of fair use and that a plaintiff may negate fair use if the challenged use “should it become widespread, would adversely affect the potential market for the copyrighted work.”[41]

III. Discussion

Cyrus’ Defenses

In Campbell v. Acuff-Rose Music, the Supreme Court once again held that transformative use is not necessary for a finding of fair use. However, the more transformative a work is, then the less significance is given to the other four factors that traditionally weigh against fair use.[42] The Supreme Court looks to “whether the new work merely supersedes the objects of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or messages.”[43] In this case, Cyrus transformed Mars’ sullen, want-you-back ballad to an empowering, self-love anthem. Further, if one interprets Cyrus’ single to be a call-and-response to Mars,’ then that is a widely known phenomenon in the industry. For example, Lynyrd Skynrd’s “Sweet Home Alabama” was an answer to “Southern Man” by Neil Young.[44] Musicians understand the “unspoken musician code” that all of them are using similar chords, melodies, ideas, words, and lyrics.[45] As such, it is even more surprising that Mars himself is not a party to this lawsuit and indicates an attempted wealth extraction by the private equity firm who recently acquired the copyrighted material.[46]

The traditional four-factor fair use analysis still applies in this case. The third factor will likely be the most contentious aspect of this lawsuit as it deals with the amount and substantiality used in relation to the copyrighted work as a whole. Prior to the lawsuit, Billboard analyzed the two songs and found no direct simples or obvious interpolations of the two songs.[47] Instead, it focused on the lyrical similarly but emphasized that “using one song to issue a retort to an earlier song is not, by itself, infringement.”[48] “Flowers” is likely to be deemed a transformative use and not infringing on Tempo Music Investments’ copyrighted work with no flowers being due to the plaintiff.

However, the fourth factor will also likely be a highly influential factor in the court’s analysis of this case. In the wake of “Flowers’” release, Mars and his fellow co-owners saw a 20% bump in weekly streams of the decade-old song.[49] There is no evidence to suggest that Cyrus’ “use” of the song will replace or impact the targeted audience for Mars’ song. This weighs heavily in favor of fair use for Cyrus.

Similar Lawsuits

Most recently, Ed Sheeran was cleared in 2023 after being accused of copying the long-deceased, Marvin Gaye’s “Let’s Get it On” in his “Thinking Out Loud” hit.[50] Admittedly, the chord progression and harmonic rhythm are very similar with both songs “featuring the 2+4 chords syncopated ahead of the anticipated beat.”[51] The two diverge as Gaye’s song has an instrument-filled background with harmonic backing vocals, saxophone, strings, guitar, and piano while Sheeran has light vocals, piano, and guitar.[52] Ultimately, the distinctions between lyrics, melodies, and structure were too large to consider Sheeran’s work a copy of Gaye’s.[53] Gaye’s estate’s reliance on the similarities of the harmonic progression and syncopated harmonic rhythm did not hold much weight as those notes have been “recreated countlessly in laid-back soul style genre that Sheeran was inspired by.”[54] Similarly to Cyrus’ use of similar chords to Mars’, this case may serve to bolster Cyrus’ defense.

Trends in Copyright Legal Landscape

In today’s digital age, there is a new era of scrutiny surrounding copyright infringement in the music industry. The factors contributing to this include the ever-increasing catalog of recorded music and likelihood that an original composition is fully original, limited number of pleasant-sounding combinations, generation that is increasingly included to simple, catchy pop sounds that require less artistic sophistication, and estates of deceased artists.[55] It will be important to establish what elements of music and musical style should be protected under copyright law.

IV. Conclusion

Based on the available information, Tempo Music Investment has a weak and unsubstantiated copyright infringement claim against Cyrus and her co-defendants. The lawsuit’s most damaging factor against infringement is the absence of Mars and his co-writers as plaintiffs. This indicates that Mars and his co-writers may have provided their blessing to Cyrus before the release of “Flowers.” Even without a direct blessing by Mars and his co-writers, they may know that the lawsuit is frivolous, and that it speaks to Tempo Music Investment’s greed by coming after Cyrus’ bag despite the already 20% increase in their streaming in the wake of “Flowers” release.[56] Not only that, the fair and transformative use doctrine remains on Cyrus’ side in protecting her composition of “Flowers.” If the presiding court finds that copyright infringement exists, then this likely creates a dangerous precedent since it will result in more lawsuits over minor similarities in musical works. As such, this court should pull up the roots on this blooming controversy and put it to bed.

[1] Bill Donahue & Andrew Unterberger, Why Miley Cyrus ‘Flowers’ Doesn’t Need to Credit Bruno Mars, Billboard (Jan. 26, 2023), https://www.billboard.com/pro/miley-cyrus-flowers-credit-bruno-mars-writer-credit/ [https://perma.cc/P6ZS-5336].

[2] Id.

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] Blake Brittain, Lawsuit Claims Miley Cyrus Copied Bruno Mars Song for Hit ‘Flowers’, U.S. News (Sept. 17, 2024), https://www.usnews.com/news/us/articles/2024-09-17/lawsuit-claims-miley-cyrus-copied-bruno-mars-song-for-hit-flowers [https://perma.cc/H5CX-AH7K].

[9] Complaint at 18, Tempo Music Investments v. Cyrus, No. 2:24-CV-07910 (E.D. Cal. Sept. 17, 2024).

[10] Id.

[11] Brittain, supra note 8.

[12] Id.