Brandon A. Zamudio
In some respects, imitation can be the sincerest form of flattery. But among songwriters, imitation can also be the surest route to a lawsuit. One of the most prominent music copyright cases today has ensnared pop star Miley Cyrus.[1]
In March 2018, Jamaican songwriter Michael May a/k/a Flourgon sued Cyrus and Sony Music Entertainment for copyright infringement in the Southern District of New York. May claimed that Cyrus’s 2013 hit song “We Can’t Stop” infringes his 1988 song, “We Run Things.” Cyrus responded in August with a motion to dismiss for failure to state a claim, but the motion failed to be the wrecking ball[2] the defense was hoping for. Last month, U.S. Magistrate Judge Robert Lehrburger recommended that District Judge Lewis Kaplan largely deny the motion.
The basis of May’s claim centered on a singular phrase in “We Can’t Stop,” repeated three times throughout the song: “We run things / Things don’t run we.” In May’s song, the phrase “We run things / Things no run we” appears nine times. Notably, these lyrics (“the Phrase”) are the only musical element in dispute; the work’s composition is not at issue.
That said, May attempts to stretch the ground that this phrase covers. His complaint alleges that Cyrus misappropriated his “original, unique and creative lyrical phraseology in order to establish an overarching and pervasive theme”—that of an “individual’s control over one’s own actions without being constrained by another person’s dictates.”[3]
To prove improper copying, May must establish (1) that Cyrus and her co-defendants actually copied his work, and (2) that substantial similarity exists between “We Can’t Stop” and, importantly, the copyrightable elements of his work.[4]
Cyrus presented three major arguments in her motion to dismiss. The first is that May’s Phrase is not copyrightable. The second is that—even if the Phrase were copyrightable—no substantial similarity exists between two works. And third—even if the earlier arguments fail—Cyrus asserts fair use.[5]
This blog post will focus primarily on the first issue: Although May’s song as a whole is presumably a copyrightable work, is the Phrase alone copyrightable?
It’s important to note again that only a short phrase is in dispute here. Generally, most copyright infringement cases turn, at least partly, on the musical composition. Cyrus’s case is perhaps a relatively uncommon situation where lyrics alone are at question.
For example, Ed Sheeran’s 2017 musical juggernaut “Shape of You”[6] also found itself mired in a copyright controversy, brought on behalf of TLC’s 1999 R&B classic “No Scrubs.”[7] There, Sheeran’s work was alleged to have a similar melody. Ultimately, the “No Scrubs” writers received credits on Sheeran’s song. (And this was likely a lucrative win for them. The music video of “Shape of You” is the second most-viewed video in YouTube history with over 4.12 billion views.) Similarly, the recent case against Robin Thicke over the 2013 hit “Blurred Lines”—perhaps one of the most high-profile music copyright cases of the decade—turned largely on comparing the musical composition of “Blurred Lines” against Marvin Gaye’s “Got to Give It Up.”[8]
To be sure though, Cyrus’s case isn’t the first music copyright case that turns on lyrics alone. Taylor Swift recently beat back a copyright suit in the Central District of California from R&B group 3LW over Swift’s 2014 single “Shake It Off.” In that case, the lyrics in Swift’s song under dispute were “cause the players gonna play, play, play, play, play / and the haters gonna hate, hate, hate, hate, hate.”[9] Plaintiff’s song included the lyrics “players, they gonna play, and haters, they gonna hate.”[10] The case against Swift was dismissed because the lyrics in the 3LW work was found to not be creative enough: “short phrases lack the modicum of originality and creativity required,” as the concept of “players,” “haters,” and “player haters” existed at the time the 3LW work was authored.[11] Applying the analysis used in the Swift case might help elucidate Cyrus’s case.
First, no one disputes that the Phrase (“We run things / things no run we”) was widely accessible in 2013, when Cyrus and her co-defendants wrote “We Can’t Stop.” The key question is if the Phrase was already widely accessible and used in 1988, when May created his work. If so, then May’s argument almost holds no water. May would only have copyright protection over whatever original, incremental addition he contributed to the widely used phrase—perhaps at best, merely a transliteration from Jamaican Patois to English.
However, even assuming that the Phrase was not widely accessible before 1988 and that May was its original source, May must also address the argument that the Phrase itself is not sufficiently original to be copyrightable. Cyrus’s memorandum of law in support of the motion to dismiss points to the prohibition on copyright protection over short phrases: “‘[w]ords and short phrases such as names, titles, and slogans’ are ‘not subject to copyright and applications for registration of such works cannot be entertained.’ 37 C.F.R. § 202.1.”[12]
In his recommendation to deny Cyrus’s motion to dismiss, however, Judge Lehrburger drew an important distinction.[13] May had obtained registration for his song and the Phrase in question is a “constituent element” of the song, Judge Lehrberger wrote, which presents a different scenario than if May attempted to copyright the Phrase by itself, which likely would have been denied under the doctrine cited by Cyrus. In short, the “use of a lyrical phrase from one song in another song may in some instances be the basis for an infringement claim.”
That doesn’t mean that the Phrase is unquestionably original, though. It appears, based on the report, that the motion to dismiss was denied primarily because May was entitled to have all reasonable inferences drawn, and ambiguities resolved, in his favor. Therefore, the Court could still very likely find, upon summary judgment, that the Phrase does, in fact, lack sufficient originality for copyright protection.
One last note on the scope of May’s alleged copyright: As noted above, May claims that the alleged use of his seven-word Phrase in Cyrus’s “We Can’t Stop” imbued the song with an “overarching and pervasive theme” that goes well beyond the phrase itself and in fact accounts for “approximately 50 percent” of the substantive content. To be clear, May’s song actually displays rather misogynistic overtones (“We rule girl, girl no rule we . . . Dem girl sound better with spoon and pot”), whereas Cyrus’s presents a theme rooted more in female empowerment. Yet even overlooking the fact that May arguably muddles the songs’ themes and therefore exaggerates their similarities, it is critical to remember that ideas can’t be copyrightable—only their expression.
So, what’s the takeaway? What are the standard practices, and how can songwriters avoid being sued like Cyrus here? After all, “the frequency with which these cases arise has increased markedly over the past twenty years.”[14]
It’s worth knowing that most music copyright infringement cases are settled out of court, resulting in shared credit and royalties. In fact, “it’s extremely rare for music copyright infringement cases to make it to a jury.”[15]
And many of these arrangements are even done ex ante. For example, when producing her album 1989 (which featured the aforementioned “Shake It Off”), Taylor Swift reached out to Right Said Fred (of “I’m Too Sexy” fame) to provide songwriting credit for “Look What You Made Me Do.”[16]
Even Miley Cyrus tried to play a fair game in this regard with “We Can’t Stop.” Cyrus and her co-authors cleared the rights from Doug E. Fresh to sample another song’s phrase—“La Di Da Di.” Maybe it goes to show that songwriters just can’t pinpoint every source of inspiration, whether or not they even knew they were inspired. Or, sometimes, they knew it all along.
[1] https://variety.com/2018/biz/news/miley-cyrus-hit-with-300-million-lawsuit-alleging-copyright-infringement-listen-1202726433/
[2] https://www.youtube.com/watch?v=My2FRPA3Gf8
[3] COMPLAINT: https://www.scribd.com/document/373782484/Flourgon-v-Miley-Cyrus-et-al
[4] See Peter F. Gaito Architecture, 602 F.3d 57, 63 (2d Cir. 2010).
[5] MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS PLAINTIFF’S SECOND AMENDED COMPLAINT
[6] Shape of You — https://www.youtube.com/watch?v=JGwWNGJdvx8
[7] No Scrubs — https://www.youtube.com/watch?v=y4pjKc0ZRiE
[8] Blurred Lines — https://www.nytimes.com/2018/03/21/business/media/blurred-lines-marvin-gaye-copyright.html
[9] Shake It Off — https://www.youtube.com/watch?v=nfWlot6h_JM
[10] Playas Gon’ Play — https://www.youtube.com/watch?v=a-MObxizQA0
[11] https://www.forbes.com/sites/michellefabio/2018/02/15/taylor-swift-shakes-off-another-copyright-infringement-suit-over-lyrics/
[12] MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS PLAINTIFF’S SECOND AMENDED COMPLAINT
[13] REPORT AND RECOMMENDATION ON MOTION TO DISMISS https://www.scribd.com/document/399673143/May-v-Cyrus-MTD-Report-and-Recommendation#fullscreen&from_embed
[14] Music Copyright Infringement Resource, https://blogs.law.gwu.edu/mcir/cases/2010-2019/
[15] https://www.washingtonpost.com/arts-entertainment/2019/03/04/what-does-copyright-infringement-sound-like/
[16] https://www.vulture.com/2017/08/im-too-sexy-taylor-swift-new-song-explained.html