The “Flowers” Epidemic: How an Increase in Copyright Infringement Claims Might be Changing the Music Industry

Miley Cyrus is not unfamiliar with negative press. Her rise from child star to pop icon was riddled with, what some might call, indiscretions. However, she has since turned her career into a roaring success with 55 million singles and 20 million albums sold worldwide. Another big achievement came for the star at the 2024 Grammy Award Show, where she won her first Grammy for Best Pop Solo Performance with her single, “Flowers”. Her performance of the song that night will surely be a memory that will last her a lifetime, but did she know it may stay just that, a memory?

Tempo Music Investments recently sued Cyrus for supposed copyright infringement of Bruno Mars’ song “When I Was Your Man.” Tempo Music Investments LLC owns a share of the song’s copyright. The suit claims that Cyrus’ song infringes on the copyright through the sequence of its verse, lyrical elements, and melodic pitch design, among other alleged similarities. If successful, the outcome could bar Cyrus from publicly performing “Flowers” or force her to pay up to $150,000 per infringement. The question is, why does this matter? It matters because while the principle of protecting artists’ work through copyright is desirable, the music industry started to see some undesirable trends in infringement suits. Many artists expressed their displeasure at what they often think are frivolous suits. Most notably, in 2023, Ed Sheeran threatened to quit writing and producing music if he was found liable for the copyright infringement alleged by Marvin Gaye’s Estate for his song “Thinking Out Loud.” Sheeran is not the only artist to struggle in this department, in fact, there is a long list of A-list artists afflicted by copyright infringement claims, including Dua Lipa, Lizzo, Led Zeppelin, Drake, and Lana del Ray. It is obvious tensions surrounding copyright in the music industry are rising and it seems as if the resolution, or lack of one, could impact the way music is produced for good.

“[C]opyright protection exists from the moment an original work is ‘fixed’ in a tangible medium…[the artist does] not have to do anything else for [their] work to be protected by copyright”. This means that original audio recordings, sheet music, and most things in between are protected under the law the moment they hit the page. The protection mechanism for copyright, however, is based in the registration of the copyright. While technically a creator always has the right to “make and sell copies, distribute those copies, make new works based on [their] work, and…publicly perform or display the work,” the registration of the copyright grants them access to the federal courts to protect against infringement. The US Copyright Office is quick to note that inspiration is an intrinsic concept in music creation and production. However, it offers no real suggestions on how to toe the line between using something as inspiration and getting oneself involved in an infringement suit. Its main piece of advice, “get permission from the copyright holder directly” but “there is no hard and fast minimum amount of music you can use without getting permission”. So while there is recognition that inspiration in musical works is inevitable, and even desired, there are no guardrails to avoid the also inevitable infringement suit. The good thing for Sheeran, and musicians like him, is that musical copyright infringement is very difficult to prove.

A famous copyright infringement case includes David Bowie and Vanilla Ice. In 1990, Bowie sued Vanilla Ice for copyright infringement based on direct sampling, or use, of Bowie’s melody in “Under Pressure.” In the end, the parties settled the case. But the issues seen in that case are representative of a general issue. The problem with creative works in copyright is that, while artists and producers cannot claim a monopoly over chords and melodies, they can claim a monopoly over the whole work. The central conflict that arises in most copyright cases is that while there are some similarities to the songs, complaints note chord progressions, and other technical elements, the question artists argue over is whether or not those similar elements are sufficient in the aggregate to say that the work as a whole violates another artist’s copyright. The way music is produced has also changed, making it easier for new artists and everyday dreamers to record and publish their music. 

Sheeran said it best. “There’s only so many notes and very few chords used in pop music…Coincidence is bound to happen if 60,000 [songs] are being released every day on Spotify”. The collision of all of these factors seems to be coming to a head in the music industry. It begs the question of whether copyright law, as it stands, adequately protects the interests of creators, or whether it provides a mechanism for frivolous suits, stifling the creativity it purports to prioritize? 

Lindsay Rudd is a second-year law student at Wake Forest University School of Law. She is from Washington State and graduated from Gonzaga University with a Bachelors in Business Administration, concentrating in Law and Public Policy with minors in Spanish, International Studies, and Philosophy. She hopes to practice civil litigation in Charlotte post-graduation. 

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