Because my dad is an attorney and keeps up with legal news, he sometimes sends me articles about legal issues in music. Recently, he sent me this one about the similarity between two pop songs written ten years apart. The first song is “When I Was Your Man” by Bruno Mars (2013), and when I listened to that song to remind myself of what it sounded like, I knew exactly where the article was going. The copyright holders of this song (who do not include Mars himself) are suing the copyright holders of Miley Cyrus’s 2023 song “Flowers” (not including Cyrus herself). Well, of course there’s a similarity between these two songs; “Flowers” is a response to “When I Was Your Man.” That’s not a copyright violation; it’s part of a musical dialog. Let me explain.
“When I Was Your Man” is written from the point of view of a man after a breakup. Our narrator’s bed feels bigger without his ex in it, his heart breaks when he hears her name, and the chorus is essentially a list of things that he should have done in order to maintain the relationship. “Flowers”, written ten years later, is Miley Cyrus’s take on the breakup, written from the woman’s point of view. (N. B. As far as I’m aware, Bruno Mars and Miley Cyrus have never been in a relationship with each other, and there is no reason to suspect that either is writing about a real-life experience. This is an exercise in songwriting.) I’ve included the lyrics to both choruses below.
To ensure that these lyrical connections are clear, I’ve bolded the related text and drawn lines between passages that are direct references. Additionally, Cyrus has kept Mars’s rhyme scheme intact. There have been many copyright lawsuits in music where the defendant’s argument was basically, “I didn’t realize I was copying someone else’s work. This came into my head, and I thought I made it up.” (See the Chiffons vs. George Harrison.) There have been other copyright lawsuits where the defense was, “This isn’t copyrightable; it’s a standard musical trope that has been around for so many years that no one can own it.” (See Spirit vs. Led Zeppelin.) This isn’t like either of those. I argue that this is a conscious reference that does not violate copyright.
There are many examples of response songs like this throughout music history. To keep it relatively brief and recent, I’ll name just a few. Robert Q. Lewis wrote a response to “Come on-a My House” by Rosemary Clooney. It was called “Where’s-a Your House?” Neil Sedaka wrote a song called “Oh! Carol” and Carole King followed up with “Oh Neil!” Lesley Gore wrote a response song to herself when she answered “It’s My Party” with “Judy’s Turn to Cry” and continued the same narrative. John Lennon wrote a diss song about Paul McCartney, and Paul answered him in song. And the Roxanne Wars was an ‘80s hip hop rivalry that featured over 100 response songs between different artists and groups. This is just something that songwriters do.
The legal post that my dad shared states that the plaintiffs claim that “When I Was Your Man” and “Flowers” share various musical features, including “melodic, harmonic, and lyrical aspects, such as the bass line, melodic sequences, and specific chord progressions.” I was planning on doing some transcription, but aside from the lyrics, I’m not hearing the similarity. The songs are in the same key (A minor/C major), and that’s essentially where it ends. The melodies are not reminiscent of one another, not even with a feature as broad as contour. I was getting ready to argue that you can’t copyright a chord loop on its own, but none of the sections of these songs have the same chord loops anyway. Even the vibe (another non-copyrightable feature) is different.
Composers are inspired by each other’s songs, and this is an example of such a case. Bruno Mars wrote a sweet song in 2013 about a man who wants to treat a woman better. Miley Cyrus wrote a contemporary update – as a woman, she doesn’t need a man; she can treat herself better. I like the original; I love the update; and these two artists have entered a conversation with one another. Hopefully, this case will be thrown out before it ever makes it to trial. If it does go to court, my wish that it can serve as an example of why people who work with intellectual property law need to be educated about music composition and music history. I’m available for hire!
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