Miley Cyrus’s global hit ‘Flowers’ is not only a musical success, but is also the subject of legal proceedings concerning alleged copyright infringement. The case centres on the question of whether ‘Flowers’ infringes the copyright of Bruno Mars’s song ‘When I Was Your Man’.
For entrepreneurs (including artists) in the music industry, this is a familiar risk. In music law, copyright claims are becoming increasingly common, particularly now that music rights are held by professional investors who actively enforce them. This Update explains when copyright infringement may occur in relation to music, and what you, as an entrepreneur (e.g. as an artist), can do to mitigate risks.
What is the situation regarding the song ‘Flowers’?
In 2024, legal proceedings were initiated against Miley Cyrus, her co-authors and various rights holders. It is noteworthy that the claim was not brought by Bruno Mars himself, but by a party that had acquired a share of the copyright in ‘When I Was Your Man’ from one of the co-authors.
Under copyright law, it is possible to transfer a share in a copyright. The transferee may then take independent action against an alleged copyright infringement. That is what has happened here.
The claimant submits, inter alia, that:
- Musical elements from the previous track have been incorporated.
- There are similarities in the tonal sequences and harmonic structures.
- The lyrics are too similar in both content and wording.
- There is a substantive and commercial connection between the two works.
The defendant contests this on specific grounds. In doing so, it argues that:
- There is no question of the use of a protected melody.
- The similarities identified relate to general musical building blocks.
- The textual similarities relate to common words and themes within the genre of break-up songs.
- There is no demonstrable market harm.
The proceedings are currently at a stage where it is being assessed whether the case should proceed on its merits or whether it can be resolved without a full hearing of evidence.
When does a song like ‘Flowers’ constitute copyright infringement?
The key question in this case is whether protected elements from ‘When I Was Your Man‘ have been copied into ‘Flowers’.
Under copyright law, only the original, creative expression of a work is protected. The following are not protected:
- Ideas or themes
- General stylistic features
- Common chord progressions
- Individual words or short, common phrases
When assessing copyright infringement, it must therefore first be determined which elements are actually protected by copyright. It is then examined whether it is precisely those protected elements that have been copied.
In music, this is often done through expert analysis, in which composition, melody, harmony and lyrics are examined.
Can you claim copyright on a chord chart or scale?
A common question asked by musicians is whether a chord progression or scale is protected by copyright.
In principle, a standard chord progression, such as a commonly used harmonic sequence, may be freely used. An abstract sequence of notes without specific rhythmic or melodic development is generally not protected. However, the specific melody, as a creative combination of pitch and rhythm, may be protected.
This means that similarities in general musical elements do not automatically constitute copyright infringement. Only when the specific, originally composed melodic line has been copied can there be a legal issue.
It is therefore important for those working in music law to distinguish between inspiration at the genre level and the actual copying of protected elements.
When are song lyrics protected by copyright?
The same applies to song lyrics: not every comparable element is protected.
General themes such as a broken relationship, regret, coming to terms with a break-up, or regaining independence after a break-up are not exclusively attributed to a single author. Copyright protects the specific wording and creative choices, not the underlying idea.
Individual words such as “flowers”, “hand” or “hours” are not protected. Even similarities in short phrases do not automatically constitute copyright infringement, unless there is a recognisable and substantial reproduction of the creative expression.
For business owners who commission or purchase written content, it is advisable to check whether the work constitutes an independent, original creation.
Can investors take action in cases of copyright infringement?
A striking aspect of the Flowers case is that it was not the original artist, but a party that had acquired a share of the copyright, who initiated the proceedings.
Under music copyright law, copyright may be transferred in whole or in part. The assignee may then independently enforce the rights and take action against alleged copyright infringements.
For entrepreneurs, this means:
- When acquiring music rights, check exactly which rights have been transferred.
- Be aware of enforcement actions by funds or investors.
- Please bear in mind that these procedures involve several parties, such as publishers and distributors.
What if you are accused of copyright infringement?
A claim for copyright infringement can cause significant financial and reputational damage. If you are faced with such a claim, it is important to:
- Seek legal advice immediately.
- To investigate which specific allegations have been made.
- To assess whether those elements are in fact protected by copyright.
- To determine whether the work constitutes a derivative work or an original creation.
In some cases, the question may also arise as to whether the new work possesses sufficient originality, or whether a legal limitation may apply. This always requires a careful legal analysis.
How can you prevent copyright infringement in music practice?
Prevention is better than litigation. In the field of music law, we advise entrepreneurs (e.g. artists) to, among other things:
- To document creative processes effectively.
- Document demos and versions.
- Make clear agreements with co-authors and producers.
- Have a legal review carried out in advance in cases of doubt.
Particularly in the case of high-profile commercial releases, such as a potential hit like ‘Flowers’, a risk assessment is no luxury.
Conclusion: Flowers demonstrates just how important copyright is in music law
The Flowers case highlights just how fine the line can be between inspiration and copyright infringement. Not every similarity in melody, lyrics or atmosphere constitutes an infringement. The decisive factor is whether protected, original elements have been copied.
For those working in the music industry, an understanding of copyright is essential. Whether you are an artist, producer, publisher or investor, handling rights with care can help you avoid costly legal proceedings.
