In February 2023, Miley Cyrus (“Cyrus”) released “Flowers,” an anthem that spent eight weeks on the Billboard Hot 100 and won the Grammy Award for Record of the Year. Shortly after, in September 2024, Tempo Music Investments, LLC, filed a federal copyright infringement lawsuit alleging that “Flowers” copied melodic, harmonic, and lyrical elements from Bruno Mars’s (“Mars”) 2013 hit “When I Was Your Man.”[i] Tempo Music (“Tempo”) is a private equity-backed fund that purchased a fractional share of the Mars song from co-writer Philip Lawrence (“Lawrence”) in 2020, years after it was written, and neither Mars nor Lawrence is a party to the suit.[ii]
On March 18, 2025, the U.S. District Court for the Central District of California denied Cyrus’s motion to dismiss, clearing the path to trial.[iii] The case raises two important questions: whether “Flowers” qualifies as fair use under 17 U.S.C. § 107; and whether copyright’s standing doctrine is being used as a tool for financial extraction rather than creative protection.
Tempo’s complaint names over two dozen defendants, including Sony Music, Apple, and Walmart, and seeks both damages and an injunction to halt further distribution of “Flowers,” characterizing it as an unauthorized derivative work.[iv] Ironically, Tempo itself acknowledges that “Flowers” boosted streams of “When I Was Your Man” by nearly twenty percent.[v]
When Cyrus moved to dismiss, her team argued Tempo lacked standing under § 501(b) of the Copyright Act because its rights derived from one co-author without the others’ consent.[vi] Judge Dean D. Pregerson disagreed, holding that because Lawrence as a co-owner could sue for infringement, Tempo as co-owner, in lieu of Lawrence, can sue for infringement without joining the other co-owners.[vii] The court added that the opposing rule “would diminish the value of jointly owned copyrights, because buyers would be less interested in purchasing a copyright that they cannot enforce, thereby disincentivizing co-authorship and collaboration in works.”[viii]
Regarding fair use, the analysis favors Cyrus on multiple grounds. An answer song, a track written as a direct reply to another song that engages its lyrics and flips its message, has a long history in American music.[ix] Where Mars wrote “I should have bought you flowers,” Cyrus responds “I can buy myself flowers.” The lyrical flip is the entire point of the song, turning Mars’s regret into Cyrus’s self-sufficiency.
The fair use doctrine under 17 U.S.C. § 107 is Cyrus’s strongest defense.[x] Courts weigh four factors: (1) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the amount of the original used; and (4) the effect on the potential market for the original.[xi] The second factor, the nature of the work, favors Tempo, as “When I Was Your Man” is an original creative composition. The third factor favors Cyrus because “Flowers” borrows lyrical phrases but does not reproduce the melody or substantial portions of the original composition. Likewise, the first and fourth factors weigh in Cyrus’s favor.
On the first factor, the Supreme Court’s 2023 decision in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith reaffirmed that the first fair use factor turns not on whether a secondary work adds new expression, meaning, or message, but on whether it has a purpose or character sufficiently distinct from the original.[xii] As the Court explained, drawing on Campbell v. Acuff-Rose Music, Inc., when commentary has no critical bearing on the original work itself, the claim to fairness in borrowing diminishes.[xiii] “Flowers” meets this test. Cyrus targets the Mars song’s lyrical message directly and flips it, responding to the original’s emotional premise rather than using the song as background material. On the fourth factor, “Flowers” increased streams of the original, leaving no cognizable market harm.
Beyond the fair use merits, the court’s standing ruling raises broader concerns about copyright’s purpose. Judge Pregerson’s decision is legally sufficient under current doctrine, but its effect is troubling. Copyright was designed to reward creators for making new work. When investment funds buy fractional stakes in old songs and then sue successful artists, the statute no longer serves that purpose. As the NYU Journal of Intellectual Property & Entertainment Law has observed, the real harm from such suits is not financial but creative. Artists “are left second-guessing if their new idea is legally theirs.”[xiv]
The chilling effect falls hardest on those who cannot absorb litigation costs. Miley Cyrus has the resources to mount a full defense, but emerging artists do not. When a fund holding a fractional copyright stake can sue without the participation or blessing of the original artist, the realistic outcome for most defendants is a costly settlement, not a vindication of rights. This dynamic threatens the tradition of musical dialogue that copyright law was designed to sustain, not suppress.
Tempo Music Investments v. Cyrus is more than a dispute over two pop songs. It is a case study in the financialization of copyright law, and the distortions that follow when the statute’s protections are separated from the creative interests they were designed to serve. On the merits, “Flowers” presents a compelling fair use argument. It is transformative commentary on the original’s lyrical premise and caused no market harm. On standing, Congress should consider whether the right to sue for copyright infringement should be limited to parties with a meaningful stake in the creative work itself, not financial investors who purchase fractional ownership after the fact. Until then, investment funds will continue to hold the right to sue over works the original artists themselves never challenged, and the answer song tradition will face growing litigation risks.
[i] See Complaint 1, 11–16, Tempo Music Invs., LLC v. Cyrus, No. 2:24-cv-07910 (C.D. Cal. Sep. 16, 2024).
[ii] See Frank D. D’Angelo & Jeff Prystowsky, Tempo Music Investments LLC v. Cyrus, Loeb & Loeb LLP (Mar. 18, 2025), https://www.loeb.com/en/insights/publications/2025/03/tempo-music-investments-v-cyrus [https://perma.cc/Y75Y-X4B7].
[iii] See Order Denying Motion to Dismiss, Tempo Music Invs., LLC v. Cyrus, No. 2:24-cv-07910 (C.D. Cal. Mar. 18, 2025).
[iv] See Complaint, supra note i, at 1, 15.
[v] See Aaron Moss, Why the ‘Flower’ Copyright Lawsuit Deserved to Wilt, Copyrightlately (Sep. 20, 2024), https://copyrightlately.com/why-the-flowers-copyright-lawsuit-deserves-to-wilt/ [https://perma.cc/4PHX-EWUR].
[vi] See 17 U.S.C § 501(b).
[vii] See Order Denying Motion to Dismiss, supra note iii, at 8 (“When a co‐owner transfers his or her interest, which the coowner need not obtain consent from the other co‐owners to do, the transferee stands in the shoes of the transferor, making the transferee a co‐owner in the copyright.”).
[viii] See id. (“[S]uch a limitation would dimmish the value of jointly owned copyrights, because buyers would be less interested in purchasing a copyright that they cannot enforce, thereby disincentivizing co‐authorship and collaboration in works.”)
[ix] See Moss, supra note v (“This lyrical back-and-forth makes “Flowers” the quintessential answer song. An answer song is written as a direct reaction to another artist’s work. It might reply to the lyrics, engage with the themes, or even extend the original story.”).
[x] See 17 U.S.C. § 107 (2018).
[xi] See id.
[xii] See Andy Warhol Found. For the Visual Arts, Inc. v. Goldsmith, 598 U.S. 508, 517–18 (2023) (quoting Campbell v. Acuff-Rose Music, Inc., 50 U.S. 569, 580 (1994)) (reaffirming that the first fair use factor asks whether a secondary use has a purpose or character sufficiently distinct from the original, and that commentary lacking critical bearing on the original work diminishes the claim to fairness in borrowing).
[xiii] See id.
[xiv] See Erin McAree, Can Creativity Survive Copyright Battles? The Case of Miley Cyrus’s ‘Flowers’, N.Y.U. J. Intell. Prop. & Ent. L. (Mar. 17, 2025), https://jipel.law.nyu.edu/can-creativity-survive-copyright-battles-the-case-of-miley-cyruss-flowers/ [https://perma.cc/72Z9-CEW7].
