Margalit Zimand
One unexpected result of Miley Cyrus’ latest hit single is that it brought the concept of music sampling, albeit erroneously, to the forefront of the cultural discourse of the early part of 2023. “Flowers,” which was released on January 12th, has topped the charts and the gossip magazines ever since. This is due in part to a well-founded fan theory that the song is a direct jab at Cyrus’ ex-husband Liam Hemsworth.[1] Contributing to this theory are the blatant similarities between “Flowers” and Bruno Mars’ “When I Was Your Man,” a song rumored to be both a favorite of Hemsworth’s and a song he once dedicated to Cyrus after their first breakup in 2013.[2] The similarities are mostly found in the lyrics of the chorus. While Mars opines: “I should have bought you flowers,” “Shoulda gave you all my hours” and “take you to every party ‘cause all you wanted to do was dance,”[3] Cyrus responds “I can buy myself flowers,” “talk to myself for hours,” and “I can take myself dancing.”[4] The songs are so similar, in fact, that some non-legally minded listeners have accused Cyrus of potentially infringing Mars’ copyright by denying him and the writers of “When I Was Your Man” credits on “Flowers.”[5]
In actuality, the similarities are not of the sort that require credit. While sources have described the “Flowers” chorus as a sample of the “When I Was Your Man” chorus,[6] it does not actually full under the definition of a sample. Sampling, which has been commonplace in music since the rise of hip hop in the 1970s and 80s, is the act of taking an actual recording of another artist’s work and reworking it, either by manipulating it or by combining it with other sounds, to create a new work.[7] While there are obvious melodic similarities between the two songs, those melodic similarities are more so indicative of the fact that nearly all pop songs consist of the same small number of chord progressions than of concerning copying.[8] Furthermore, the lyrical similarities, while undoubtedly present, are not identical copies and contain words and phrases too short and commonplace to possibly possess copyright protection.
While the song is not an example of sampling or unauthorized copying, it has provided an interesting data point to the discourse surrounding those topics in music. Much has been written about the confluence of copyright and sampling. In 1992, then Master of Law Student Jeffrey R. Houle wrote that the impact of sampling on the commercial sales of sampled works should not matter because, if the new song is “imbue[d]…with the qualities and identity of the copyright protected work,” then the sample is unlawfully copied.[9] Contrastingly, in a 2019 article, Professors Mike Schuster, David Mitchell, and Kenneth Brown argued that, because the most important aspect of fair use is its effect on the market for the original work and because their data demonstrates that sampling of songs increases the sales of the sampled songs, sampling should constitute fair use.[10]
Notably, in the past few weeks, the song “Flowers” did increase sales of “When I Was Your Man,” which was released in 2012 and has seen a 19.5% gain in streams.[11] This seemingly supports the Schuster et al. camp’s argument for fair use, but it might support the Houle camp’s argument as well. With “Flowers,” Cyrus successfully balanced both releasing a song that, by putting itself in conversation with an older song, significantly increased the streams of both works, and avoided “imbu[ing]” her work with the unique characteristics of Mars’ song. This is not to say that sampling is not a valuable and worthwhile tool in the world of musicmaking and that there are not other reasons to provide more legal protection for it, but merely that the legality of gaining inspiration from previous musical works is not uncompromising after all.
[1] Andrew Unterberger, Five Reasons Why Miley Cyrus‘ ’Flowers’ Became Her First No. 1 Hit in a Decade, Billboard (Jan. 24, 2023), https://www.billboard.com/music/chart-beat/miley-cyrus-flowers-why-debuted-number-one-1235203914/ [https://perma.cc/3QKF-Q2LW] [https://web.archive.org/web/20230202024213/https://www.billboard.com/music/chart-beat/miley-cyrus-flowers-why-debuted-number-one-1235203914/]; Marisa Delatto, Miley Cyrus’ ‘Flowers’ Earns Most Streams In A Single Week Since 2021, Forbes (Jan. 30, 2023), https://www.forbes.com/sites/marisadellatto/2023/01/30/miley-cyrus-flowers-earns-most-streams-in-a-single-week-since-2021/?sh=3b9ce3341961 [https://perma.cc/HGD5-2QH8] [https://web.archive.org/web/20230202024420/https://gum.criteo.com/syncframe?origin=publishertag&topUrl=www.forbes.com].
[2] Andrew Unterberger, Huge Gains for Miley Cyrus‘ Catalog (And One Bruno Mars Hit) After ’Flowers’ Debut, Billboard (Jan. 25, 2023), https://www.billboard.com/pro/miley-cyrus-catalog-streaming-flowers-bruno-mars-when-i-was-your-man/ [https://perma.cc/78YDHMQK] [https://web.archive.org/web/20230202024541/https://www.billboard.com/pro/miley-cyrus-catalog-streaming-flowers-bruno-mars-when-i-was-your-man/].
[3] Bruno Mars, When I Was Your Man, on Unorthodox Jukebox (Atlantic Records 2013).
[4] Miley Cyrus, Flowers, on Endless Summer Vacation (Columbia Records 2023).
[5] Bill Donahue and 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/4YF2-P3C2] [https://web.archive.org/web/20230202024651/https://www.billboard.com/pro/miley-cyrus-flowers-credit-bruno-mars-writer-credit/].
[6] Capital FM, Why Miley Cyrus’ ‘Flowers’ Lyrics & Bruno Mars Sample Are Being Linked To Ex Liam Hemsworth, (Jan. 20, 2023), https://www.capitalfm.com/news/miley-cyrus-flowers-lyrics-bruno-mars-liam-hemsworth/ [https://perma.cc/7Y5M-2DNZ] [https://web.archive.org/web/20230202024839/https://www.capitalfm.com/news/miley-cyrus-flowers-lyrics-bruno-mars-liam-hemsworth/].
[7] Will Brook-Jones, What Is Sampling in Music?, Anderton’s (Jan. 11, 2021), https://blog.andertons.co.uk/learn/what-is-sampling-in-music [https://perma.cc/KWC2-HCGX] [https://web.archive.org/web/20230202025102/https://blog.andertons.co.uk/learn/what-is-sampling-in-music].
[8] Alan White, 73 Songs You Can Play with the Same Four Chords, Buzzfeed.com (Apr. 29, 2014), https://www.buzzfeed.com/alanwhite/73-songs-you-can-play-with-the-same-four-chords [https://perma.cc/6YZH-9BRW] [https://web.archive.org/web/20230202025610/https://www.buzzfeed.com/alanwhite/73-songs-you-can-play-with-the-same-four-chords].
[9] Jeffrey R. Houle, Digital Audio Sampling, Copyright Law and the American Music Industry: Piracy or Just a Bad Rap, 37 LOY. L. REV. 879 (1992).
[10] Mike Schuster et al., Sampling Increases Music Sales: An Empirical Copyright Study, 56 AM Bus Law J 177-229 (2019) https://doi.org/10.1111/ablj.12137 [https://perma.cc/8NFR-DFQV] [https://web.archive.org/web/20230202025817/https://onlinelibrary.wiley.com/doi/10.1111/ablj.12137].
[11] Unterberger, supra note 2.