Miley Cyrus has been having a great year since she began her comeback last summer with the release of her song “Malibu” and subsequent fall album Younger Now. Miley appeared to have turned a new leaf when she announced new music on the horizon, showed off a new hairstyle, talked about returning to her country roots, and boasted a newfound sobriety from marijuana and alcohol. Everyone began referring to her as “the new Miley” as opposed to the divisive “old Miley,” who we were introduced to on the 2013 MTV Video Music Awards stage donning a foam finger and suggestively dancing with Robin Thicke (who was an uncomfortable 15 years her senior).
On March 13, a lawsuit was filed in the Southern District of New York against the “new Miley” for one of “old Miley’s” biggest hits. Jamaican songwriter Michael May, who performs under the stage name Flourgon, filed a complaint against the Bangerz singer for her 2013 hit “We Can’t Stop” claiming copyright infringement. May claims Cyrus stole about half of his 1988 song “We Run Things”, including the line “We run things, things don’t run we.” May also claims that the Bangerz single “owes the basis of its chart-topping popularity to and its highly-lucrative success to plaintiff May’s protected, unique, creative and original content.” The songwriter is requesting $300 million and a halt to subsequent sales and performances of the song.
The courts are no strangers to high profile hits getting slammed with copyright infringement claims. In 2015, a jury found Robin Thicke and Pharrell Williams liable for infringing Marvin Gaye’s “Got to Give it Up” in their song “Blurred Lines.” Classic rock band Led Zeppelin has also had a long history of creating eerily similar songs and “giving credit only under duress” (“10 Boldest Rip-Offs” by Led Zeppelin according to Rolling Stone Magazine). But does May have a good case?
May must establish that he owns a valid copyright for his “We Run Things” and that Cyrus copied protected elements of his song. In the absence of direct proof of copying, a court will have to determine if the two songs are substantially similar. This is determined by using a two part test. The first part of the test is an objective test employed by the court to dissect the work into protected elements and unprotected elements. Looking at only the protected elements, the judge will determine if there is substantial similarity; if there is a finding of substantial similarity, the case then goes to a jury for the second part of the test. The second part of the test is a subjective one asking whether an ordinary, reasonable person would find that the two songs are substantially similar.
May will possibly have an uphill battle before the jury. He will have to convince ordinary members of the jury, who may have no background in music, that Cyrus’s song is substantially similar to his 1988 reggae song that they may have never heard before this case. The “Blurred Lines” verdict has been described as shocking by the music and legal community as it broadened copyright protection, but will Cyrus’s song trigger those protections? Until then, we will have to wait and see what Miss Miley will do about this costly legal battle ahead of her. Listen to both songs below and decide for yourself if Michael May has a legitimate chance of prevailing or if Cyrus will be able to continue to perform and sell her biggest hit since “Party in the U.S.A.” to fans.
Miley Cyrus – We Can’t Stop (https://youtu.be/LrUvu1mlWco)
Flourgon – We Run Things (https://www.youtube.com/watch?v=xv1VO4aCrnI)