We don’t often see cases like this. “Flowers” and “When I Was Your Man” were both number-one hits and Grammy winners. “Flowers” was Record of the Year! Two super well-known songs, and nobody is completely shocked at this filing. (Which, by the way, is not Bruno Mars but Tempo Music Investments, LLC, which according to the complaint acquired the rights of co-writer Philip Lawrence.) It’s quite true, as detailed in the complaint, which was obtained by Musicologize (and I’ve vowed to use “obtained by” each time I mention future complaints), the moment “Flowers” was released, connections were quickly noticed and widely discussed across social media.
But this case will not win, because while we all agree that Miley was indeed in the Conservatory, which is not a crime, there is no revolver nor candlestick to be found. And Mr. Body is still walking around, healthy as ever.
Just in case you live on Mars, here’s both.
As a forensic musicologist, of course, such high-profile cases bring “Is it infringement?” inquiries, but it’s not my function to decide that exactly. A forensic musicologist explains the relevant musicological truths so that the court can arrive at a well-informed decision on infringement, and preferably in a timely, efficient manner, though that seems unlikely here. When this shakes out, though, one silver lining is that the very relatable elements across these works, familiar to so many, will help illustrate the overlap and distinction between intertextuality, inspiration, and observable similarity, and those that should lead to a finding of infringement — copying and substantial similarity, distinctions we always try to illuminate around here. The complaint contains more specific musicology than most, so we have a decent look at the plaintiff’s positions.
Overall, the complaint asserts that “Flowers” “duplicates numerous melodic, harmonic, and lyrical elements of “When I Was Your Man,” including the 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.” And that without “When I Was Your Man,” “Flowers” would not exist.
I may find time to go point by inconsequential point but the long and short is that I see little merit here. That last part of course seems true enough — without “When I Was Your Man,” “Flowers” might not exist. There’s your Conservatory. There’s your first whiff of smoke. But by itself, that’s not what infringement requires, and neither are the preceding claims absent substantial similarity, which requires protectability. A finding of infringement requires finding the copying of elements that are original to “When I Was Your Man,” and enough of these in number and degree in “Flowers” such that anyone should give a damn.
We won’t.
To every single observation around similarity in the complaint, the response can be, “To the extent that this claim is even accurate, anyone is entirely allowed to that by coincidence, accident, or on purpose, because your element, sub-element, or notion of an element, is unoriginal, unprotectable, not very similar to ours in the first place, and too trivial to matter.” Every. Single. One. And however long the list of such claims of similarities that aren’t a problem, they remain not a problem. The perfectly legal things one does in the Conservatory, taken individually or as a collection, do not magically turn into something criminal. But that’s the logic I see in this complaint.
Take a wild ass guess what notorious copyright infringement case this resembles. I admit, I didn’t connect them myself. I must be part cockeyed optimist to have thought that ghost was gone. A more astute legal mind pointed it out to me.
It will lose, but how efficiently? The plaintiff will need a judge not to understand or refuse to rule that the notes, harmonies, and a certain “connecting bass-line” (I’m dead) are all musicologically irrelevant. And though that’s the extrinsic test, hey, they may well get it. An article from Bloomberg Law hinted at this with more grace than I can muster. And I haven’t even gotten to the stuff around lyrics! Aaron Moss did his usual terrific job especially in covering in particular the intertextuality aspects of these still obviously related works. When the legal scholars who contributed to both of these articles and I batted this around on Twitter, as we do, there was little if any dissent. It is not a “gotcha” by any means that Miley’s is an obvious response to Bruno’s. Flowers, hand holding, dancing, and “Should have gave you all my hours,” which really isn’t the same thing as “Talk to myself for hours,” are far from lost on anyone. But all of that is just more smoke.
Miley was aware of “When I Was Your Man,” none of these things you pointed to are yours to protect. For numerous reasons these allusions are perfectly fine, by coincidence or on purpose matters not. And the plaintiff probably knows it. They position the contorted and inconsequential notes, harmonies, and analyses contortions as the revolver. The lyrics are meant to fortify all that. It puts Miley where we already knew she was, in the Conservatory.
Let me rant a sec about another damned ghost.
Infringement requires copying and, as we’ve said here a thousand times, copying requires “access.” You can’t copy something you’ve never heard. Here though we have Billboard #1 Grammy-winning lovely song that we’ll probably hear for the rest of our lives “When I Was Your Man.” And on top of that, “Flowers” alludes to it. Access is maxed out. This mere circumstance used to make The Ninth Circuit suspicious to the point that they established the “Inverse Ratio Rule” which posits that a higher degree of similarity to a work requires less proof of access in infringement cases, and the inverse. Initially, I was highly critical, but I’ve refined my perspective. The problem was that the inverse logic of this rule—greater access justifying less similarity— was ultimately nonsensical and often confusing to juries. After further reflection and exposure to the opinions of legal experts, Shyam Balganesh especially, I agree that the rule even in its problematic inverse might have some merit when applied thoughtfully. I still don’t like its original formulation and its misuse, but access has some value as circumstantial evidence in combination with similarity to help inform decisions in copyright cases.
Here, I see the plaintiff as depending upon the fallacy. For the sake of argument let’s give them what they want — extend and expand “access” to the point of agreement that “Flowers” might not even exist exactly as it is without “When I Was Your Man.” But neither that nor any amount of access makes up for a lack of substantial similarity. Substantial similarity is the core of copyright infringement; nothing else. Access has power whatsoever in making commonplace or trivial musical elements protectable. This was why the Inverse Ratio Rule needed to go. It was a good ratio, a meh inverse, and a flat-out dumb rule.
Miley was in the Conservatory, but there’s no revolver anywhere in sight. Bigger picture, however this goes, I think the plaintiff and copyright law are in direct conflict. Copyright law loves the Conservatory. Copyright law wants Miley in there making music that might be inspired by or even under the right circumstances alude to other works. Substantial similarity is the line, and this doesn’t begin to cross it.
That’s what I think. Feel free to argue in the comments or find me on twitter.
