Miley Cyrus’s Flowers case will soon be over, and it will have ended the way I said it would in November 2024, back when the complaint was new. These things can drag, but the musicology was always straightforward.
Nobody can tell you when the order lands but the defendants’ summary judgment motion has been taken under submission, and the court has since vacated the trial dates while it writes. What it should say, is that the plaintiff’s musical case cannot survive the extrinsic test. And if it somehow does survive, we get a trial that shouldn’t happen, and actually, that’ll be it’s own sort of fun, but the musicology will still be what it was two years ago when I wrote that Miley was indeed in the Conservatory, which is not itself a crime, but that there was no revolver nor candlestick anywhere in sight. Two years of relatively meaningless discovery and litigating, including a testifying novelist (we’ll get there), and a few hundred docket entries later, still no weapon, still no body, still no crime.
(I dare you to say “tort.”)
Here’s why it’s over before it’s over.
First, they have a melody problem.
Under the Ninth Circuit’s extrinsic test, the plaintiff has to identify objective, protectable similarities. Melody is the usual suspect, because an original melody of sufficient length can easily be, by itself, a protectable expression. But there is no shared melody between the two songs, merely some shared pitches inside otherwise different lines. “When I Was Your Man,” verse contains: E-E-E-D-E-E-D-E-D-C-E-F-F and “Flowers,” chorus begins: E-E-E-D-C-E-F (I can buy my-self flow-ers.) So there’s that pitch string E-D-C-E-F.
Quick bit of theory. A pitch string is not quite a melody. A melody is pitch plus placement plus duration, the thing you can actually hum. Strip the rhythm away, and you have an abstraction. E-D-C-E-F is a walk down a piece of the minor scale and a hop and a step back up. It would be found in lots of songs and even “learn to play” exercise books for any instrument.
And the Ninth Circuit has already ruled on exactly this move, in a case regular readers know well. Dark Horse. Gray v. Hudson: an eight-note melody may be copyrightable, but the abstract pitch sequence inside it is not. I covered that case at every stage, including when the district court took the verdict away, so watching this complaint rebuild the same argument out of even less material was déjà vu I didn’t order.
Then they have a harmony problem.
The harmonic similarity between the two songs uses A minor, D minor, G major and C major. The shared progression is a commonplace “circle-of-fifths” pattern. (It has a name. When your similarity has a name found in any music theory textbook, you might be blowing smoke.) Something has been made of the songs being in different keys. Don’t make much of that. They kinda are, and they kinda aren’t. A minor for Flowers against C major for Man, with the plaintiffs arguing Flowers “oscillates” to C major. It does; it just doesn’t matter; a dumb battleground. They both do it back and forth. Which you decide to key in on doesn’t change the fact that chord progressions are mostly public roads, and these are superhighway-type harmonies driven every day.
Then they have everything else problems.
One is a slow piano ballad about regret, a really good one. The other is an upbeat dance-pop song about buying your own flowers. Which, well, duh, the connection in the lyrics that the complaint called “meaningful” was an intertextual wink, the response-song gesture: I should have bought you flowers, versus I can buy myself flowers. That connection is clear enough. And this also doesn’t matter. It was never protectable, which is why the plaintiff eventually needed a lyrics expert, and the one who showed up was a novelist offering a literary-works analysis. I can buy myself flowers. I can buy someone else flowers. And I can put both in as many poems, lyrics, and novels as I want. Whether that testimony even survives its own exclusion motion is one of the things the pending order will tell us.
The three-legged stool of Copyright Infringement: Access, similarity, protectability.
Musicologize’s favorite metaphor, the three-legged stool, one more time. Access is total; everyone on earth heard “When I Was Your Man,” and “Flowers” plainly answers it. Similarity, once you require it to live in a protectable expression, is a five-pitch textbook melodic fragment and a textbook chord progression as well. Commonplace stuff. One maxed-out access leg will sometimes breathe life into a lawsuit, but the stool is gonna upend. The ghost of the inverse ratio rule should stay buried here, and I’ll be watching the order for any hint of it.
The bad science problem.
This is how a case like this gets filed in good faith. We all hear the response song. “I can buy myself flowers” answers “I should have bought you flowers,” and that connection is intended and lost on no one. So, to that extent, the pre-hypothesis is confirmed: the songs are related. And once you believe that, you go looking in the music, and in tonal pop, a musicologist can always find something. Shared pitches. A “motif.” Shared chords or keys. A pause here, a pattern there. Each find feels like evidence. And it isn’t.
Here again, there’s a name for it. The philosopher Karl Popper explained that confirmations are cheap. You can collect confirming instances for any theory you like; the only test that means anything is the one designed to prove you wrong. Psychologists say we’re wired to run the cheap kind anyway, hunting for hits and never asking the base-rate question. And the base-rate question here is not “do both songs contain E-D-C-E-F?” It’s “how many songs contain E-D-C-E-F?” When each find is too weak to flip the switch, the biased logician widens the search, lowers the bar, and makes it up on volume. You fire at the barn, and afterward paint the bullseye around the cluster.
It’s not a question of whether Flowers was thinking When I Was Your Man. It was.
It’s not a question of whether an E-D-C-E-F pitch series appears in both. It does. It might even have been intentional, and I don’t care. I already know they were connecting the two songs. That’s not illegal. Musicologize provides clearance analysis for songs every day where a Song A was in the creative brief, and in the mind of the composer hired to create Song B, but not copy its protectable expression. And would I have flagged any of this in a clearance read of Flowers in 2022? Well, yes, actually.
Wait. Wut?
I’d have flagged it. Not because it’s infringement. Infringement is binary, Yes/No, and this isn’t close. It’s no, and I expect the order to land there. But accusation and litigation risk isn’t binary. I apply all sorts of ratios and my client and I arrive at a decision to make changes or leave things alone. Accusation and litigation risk is a reflection of why Bruno, Miley, and the plaintiff who bought one credited writer’s interest in When I Was Your Man are going through all of this now. When all the while, Copyright law loves its Conservatory. It wants Miley in there, hearing everything that’s there, writing an answer song if she wants, so long as she doesn’t take protected expression down the secret passage to the Lounge. She didn’t.
That’s the call, before the record drops.
The musical analysis is mine. Legal advice is your attorney’s.
