A federal judge appears poised to take a wrecking ball to Miley Cyrus’ motion to dismiss the copyright infringement lawsuit filed over her Grammy-winning hit “Flowers.”
At a court hearing in downtown Los Angeles on Monday, U.S. District Judge Dean D. Pregerson repeatedly indicated he believes plaintiff Tempo Music Investments has adequate standing to move forward with its lawsuit against Cyrus and her co-defendants after Tempo purchased a fractional share of the Bruno Mars song “When I Was Your Man” from one of that song’s four co-authors, Philip Lawrence.
In its lawsuit filed last September, Tempo alleged that “Flowers” copied numerous melodic, harmonic, and lyrical elements from Mars’ successful 2013 single. In her motion to dismiss filed last November, Cyrus and her co-authors rejected the claims of infringement, but they asked for dismissal on the grounds that Tempo simply lacked standing to sue. According to Cyrus, Tempo did not retain the same standing to sue that Lawrence had before he sold his fractional share. In other words, she argued that a co-author can sell their profit interest in a copyrighted work, but the same co-author can’t allocate their individual right to sue for infringement without the consent of the song’s other co-owners. Tempo’s lawyers disputed this position.
“There’s a profound policy issue before the court. Adopting the rule urged by [Cyrus] would turn the entire music industry, indeed the tech industry as well, on its ear. The policy behind the Copyright Act allows people to freely [sell] their interests in copyright,” Tempo lawyer Alex Weingarten argued Monday.
Judge Pregerson seemed to agree. As soon as Weingarten finished his thought, the judge added: “Or if someone dies and someone acquires an interest through an estate. All of a sudden they lose the right to enforce it.” (Minutes earlier, the judge asked Cyrus’ lawyer why anyone would ever buy a fractional interest in a song “knowing they could never enforce it” without getting the consent of all the other parties.)
“Precisely, your honor,” Weingarten said. “It’s preposterous. If a right does not include the right to enforce that right, then the right is meaningless. You can’t have a rule where if a copyright owner dies, their estate is unable to be able to enforce that copyright.” He said a rule like that made “absolutely no sense.”
Again, the judge agreed. “Sure,” Pregerson said. “If someone wants to buy what someone owns, buy the entire thing, and that includes the right to enforce that ownership against the rest of the world — if you don’t allow that, then you diminish the value of what you’re selling to the point where it may become worthless,” the judge said.
In his filings opposing the dismissal motion, Weingarten cited a 2007 opinion in the Second Circuit, Davis v. Blige, as well as 2015 Ninth Circuit case Corbello v. DeVito. He argued the rulings gave co-owners the right to sell an exclusive interest in a copyrighted work without obtaining authorization from the other co-owners. He said the new owner simply retained a duty to the other co-owners to account for any profits received.
Judge Pregerson did not immediately rule on the dismissal motion Monday. Instead, he took it under submission after also hearing from Cyrus’ lawyer, Peter Anderson.
In his argument, Anderson brought up two other Ninth Circuit rulings that largely conflict with the cases Weingarten cited. The cases — 2008’s Sybersound Records, Inc. v. UAV Corp. and 2020’s Tresóna Multimedia, LLC v. Burbank High School Vocal Music Association — rejected the argument that a co-owner who purchases rights to a protected work also retains the original owner’s unilateral right to sue for infringement. Instead, the decisions found that the plaintiffs needed unanimous consent of the other co-owners to proceed.
“So you’re arguing that when a joint owner sells an entire ownership interest, the transferee cannot enforce the copyright?” Judge Pregerson asked Anderson Monday.
“No, they can enforce it. But they have to get the consent of the other co-owners,” Anderson argued.
At least one copyright expert following the case tells Rolling Stone that if Judge Pregerson allows the case to move forward, it would “ultimately benefit Cyrus and her co-defendants just as much as Tempo.” The long list of co-defendants sued alongside Cyrus includes Sony Music Publishing; Sony Music Entertainment; and Warner-Tamerlane Publishing, a division of Warner Chappell Music.
“Writers, publishers, and record labels frequently own fractional shares of songs, and it’s important that they be able to enforce those rights — especially in cases where their co-owners may be unwilling or unable to join an infringement claim. I suspect that’s the reason why many of Cyrus’ co-defendants, including Sony Music Publishing, chose not to join her motion and instead filed an answer,” Aaron Moss, a copyright lawyer at Greenberg Glusker in Los Angeles, says.
“The judge seemed particularly focused on the practical implications of denying standing, and his reasoning makes sense. If fractional owners couldn’t enforce their rights individually, their ownership would be effectively weakened, making these assets far less valuable in the marketplace,” Moss tells Rolling Stone.
Moss previously wrote on his blog, Copyright Lately, that the Ninth Circuit’s “flawed approach” to copyright standing for co-owners has created a “muddled” landscape in an industry where fractional ownership is the norm. He said Tempo’s lawsuit still deserves to be dismissed, but for reasons other than Tempo’s standing to sue in the first place.
Moss called Cyrus’ song a textbook example of an “answer song” written in response to “When I Was Your Man.” “[It] almost certainly qualifies as a fair use of Bruno Mars’s original,” Moss wrote.
From Rolling Stone US
