Judge refuses to dismiss copyright suit against Miley Cyrus

A magistrate judge in the federal court in Manhattan has declined to dismiss a copyright infringement case brought by a Jamaican artist against American pop star Miley Cyrus.

Michael May, a Jamaican dancehall artist who performs under the name Flourgon, initially filed suit against Cyrus in March 2018. The suit relates to Cyrus’s song “We Can’t Stop” from her 2013 album Bangerz, which May alleges copies lyrics from May’s 1988 single of the same name, which was a #1 hit in Jamaica and achieved success in the United Kingdom, the United States and Canada.

In the suit, May claims that Cyrus's song “owes the basis of its chart-topping popularity to and its highly lucrative success to plaintiff May's protected, unique, creative and original content.” May is seeking up to $300 million in damages and injunctive relief forcing Cyrus to stop further sales and performances of “We Can’t Stop.”

The chorus to Cyrus’s song includes the lines “We run things/Things don’t run we”, which are repeated three times, while May’s track is centered on the lyric “We run things/Things no run we.”

In a 39-page decision, United States Magistrate Judge Robert W. Lehrbuger ruled against a motion brought by Cyrus’s legal team in August to dismiss the case. Judge Lehrburger based his decision on the fact that the court needed a more developed evidentiary record to decide the issues in the case, including Cyrus’s defences that her lyrics simply adapted a well-known Jamaican saying or that her quoting of May’s song fell within the scope of fair use under the federal copyright statute. Judge Lehrburger indicated that the record suggests that Cyrus may prevail on the merits on at least the fair use issue, if not others.

Fair use is an exception to liability for copyright infringement that applies when a party uses copyrighted material for a limited and transformative purpose such as criticizing or parodying the underlying work.

The court did grant Cyrus’s motion to limit damages to the three years preceding the filing of May’s suit on grounds relating to the statute of limitations.

Authors: Jaclyn Tilak and Wes Dutcher-Walls, 2018/2019 Articling Student-at-law