On February 14, 2019, New York federal Magistrate Judge Robert W. Lehrburger declined to dismiss the case filed by Jamaican reggae performer Flourgon (whose real name is Michael May) against Miley Cyrus, alleging that much of her 2013 hit “We Can’t Stop” was copied from his 1988 reggae song.
Cyrus had argued the suit should be tossed because she merely used a common Jamaican phrase in her song, but Judge Lehrburger said in his 39-page report and recommendation that much of her motion to dismiss should be denied so that the court can address the infringement and fair use claims. However, Judge Lehrburger also explained that should Flourgon’s claims prevail, he should be limited in what actual damages he can seek by the three-year statute of limitations, recommending the court grant that part of Cyrus’ motion.
Judge Lehrburger explained, “Defendants’ arguments to a large extent are predicated on an incorrect assumption that the phrase is a trivial adaptation of a well-known, pre-existing Jamaican saying…While that ultimately may prove to be true, the court cannot make that determination on this motion.”
Flourgon’s March 2018 copyright infringement lawsuit largely focuses on Cyrus’ use of the phrase, “We run things, things don’t run we,” which, in the reggae song is: “We run things, things no run we.”
Flourgon’s track became popular in both Jamaica and the U.S. in the late 1980s, though he didn’t register his song with the United States Copyright Office until 2017. Cyrus’ song reached No. 2 on the Billboard Hot 100 in 2013.
Cyrus argued in her August 2018 motion to dismiss that the phrase is an adaptation from the common Jamaican English saying, “Wi run tings. Tings nuh run wi,” and the phrase isn’t subject to copyright protection. And even if it were, the protection is nominal. She also said her use of the phrase counts as fair use per the Copyright Act.
But Judge Lehrburger disagreed with Cyrus stating “Cyrus’ argument is flawed…Examples Cyrus submitted to the court showing the phrase was used before Flourgon’s song cannot be considered at the motion to dismiss stage.” For the purposes of Cyrus’ motion to dismiss, the court must consider the phrase unique to Flourgon.
Judge Lehrburger also stated that “Cyrus’ contention that even if the phrase is original to Flourgon, it can’t be protected by copyright,” is wrong. “Copying a phrase from one copyrighted work into another work” could mean infringement.
Although it is premature to determine Cyrus’ use of the phrase constitutes fair use, though the “fair use factors taken as a whole … strongly favor a finding of fair use… further development of the record is required for an ultimate determination,” Judge Lehrburger said.
Cyrus is represented by Marcia B. Paul, James Rosenfeld and Meredith Santana of Davis Wright Tremaine LLP.
Flourgon is represented by Stephen L. Drummond and JoAnn Squillace of Drummond & Squillace PLLC.
The case is May v. Cyrus et al., case number 1:18-cv-02238, in the U.S. District Court for the Southern District of New York.
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