The recent copyright law landscape is rife with infringement lawsuits alleging that one song substantially copied the musical elements of another. As a music industry norm, songwriters frequently split the copyright of a single song with one or more co-authors, each owning exclusive rights in their respective shares of the work under the U.S. Copyright Act. Inherent in this bundle of rights is the ability to transfer them and enforce them against unauthorized users of the composition. However, application of these principles is not always straightforward, as a lawsuit pending against pop star Miley Cyrus illustrates.[1]

Tempo Music Investments, LLC v. Miley Cyrus

In January 2013, Bruno Mars released his hit song “When I Was Your Man,” which he co-wrote with Philip Lawrence, Ari Levine and Andrew Wyatt. Investment company Tempo Music Investments, LLC (“Tempo Music”) later acquired Lawrence’s copyright share in the composition. A decade after that song’s release, in January 2023, Miley Cyrus released her Grammy Award-winning song “Flowers,” which she co-wrote with Gregory Hein and Michael Pollack.

On September 16, 2024, Tempo Music commenced a copyright infringement action in the United States District Court for the Central District of California against Cyrus, songwriters Hein and Pollack, and various music publishers, distributors and digital service providers.[2] Tempo Music asserts that, in or around 2020, it acquired the exclusive rights to writer Lawrence’s copyright share in “When I Was Your Man.”[3] According to Tempo Music, Cyrus and the other named defendants infringed its copyright in Bruno Mars’s “When I Was Your Man” through “unauthorized reproduction, distribution, and exploitation” of that song in Cyrus’s “Flowers.”[4] Specifically, Tempo Music argues that “Flowers” “copies a substantial portion of distinct, important, and recognizable portions of ‘When I Was Your Man.’”[5] Tempo Music alleges numerous shared elements of the two songs, including the melodies, harmonies, lyrics, chord progression and bass line, and emphasizes that “the opening vocal line from the chorus of ‘Flowers’ begins and ends on the same chords as the opening vocal line in the verse of ‘When I Was Your Man.’”[6]

On November 20, 2024, Cyrus and certain other named defendants filed a motion to dismiss, arguing that, under Ninth Circuit law, an assignee or licensee of a single co-author does not own exclusive rights, and therefore cannot bring a copyright infringement suit.[7]  Because Plaintiff acquired only Lawrence’s interest in “When I Was Your Man,” and not the other three songwriters’ rights, Cyrus and certain of her co-defendants argue, Tempo Music is merely an assignee of non-exclusive rights.[8]

Cyrus and certain of her co-defendants claim that, although Congress allowed for the divisibility of copyright ownership under the current Copyright Act, it also recognized the importance of avoiding a multiplicity of infringement suits by limiting standing to sue to owners of exclusive rights.[9] Thus, Cyrus and certain of her co-defendants argue, Tempo Music lacks statutory standing to sue them.[10]

On December 9, 2024, Tempo Music filed its opposition to Cyrus’s and certain of her co-defendants’ motion to dismiss, arguing that, “as Lawrence’s successor-in-interest to the copyright, Tempo now steps into Lawrence’s shoes as the owner of his copyright interest and can bring any claim for copyright infringement that Lawrence (or his publisher) would have been entitled to individually bring.”[11] Tempo Music emphasizes that the alternative result would undermine the Copyright Act’s transferability rights, inventing a new rule that a co-author may not transfer his or her full copyright interest.[12]

Tempo Music argues that the Ninth Circuit and other circuit courts have routinely held that a co-owner may transfer his or her entire ownership interest in a copyright without obtaining permission from all of his or her fellow co-owners.[13] However, Tempo Music concedes that a co-owner’s right to transfer his or her ownership interest in a copyright without the consent of all co-owners is not unlimited: “(1) a co-owner may not transfer more than what he actually owns; (2) all co-owners must consent to transferring an exclusive license under 17 U.S.C. [Section] 106; and (3) co-owners have a duty to one another to account for profits received.”[14] Tempo Music further argues that two types of exclusivity confer standing to sue for copyright infringement: first, where a plaintiff acquires an exclusive right delineated under 17 U.S.C. Section 106 with all of his or her co-authors’ authorization; and second, where a plaintiff exclusively acquires a co-owner’s entire share of a joint work.[15] Tempo Music maintains that, because it acquired Lawrence’s full share in the “When I Was Your Man” copyright, it has the requisite standing to sue Cyrus and her co-defendants for copyright infringement.[16]

Because Cyrus and certain of her co-defendants did not raise other challenges to Tempo Music’s complaint, Tempo Music argues that their motion to dismiss should be denied in its entirety, as it has standing to sue.[17] In the alternative, Tempo Music requests leave to amend to join its fellow co-owners in the action.[18] The U.S. District Court for the Central District of California has yet to rule on Cyrus’s motion.

Co-Ownership Under The U.S. Copyright Act

Copyright owners hold a number of exclusive rights.[19] Joint authors of a work are considered co-owners of the copyright in the work under Section 201 of the U.S. Copyright Act, with “each coowner having an independent right to use of [sic] license the use of a work, subject to a duty of accounting to the other coowners for any profits.”[20]

Under the 1909 Copyright Act, a copyright owner could not transfer less than “the totality of rights commanded by copyright.”[21] Accordingly, “[a]nything less than an assignment [of the totality of rights] was considered to be a license,” which did not provide a transferee standing to bring an infringement action.[22] The reason for this “doctrine of indivisibility” was “to avoid multiple infringement actions, each brought by the holder of a particular right in a literary work without joining as co-plaintiff the author or proprietor of the copyrighted work.”[23]

However, the 1976 Copyright Act—which is the current version of the statute—eliminated much of the indivisibility doctrine.[24] The 1976 Copyright Act codified the divisibility of the bundle of rights that a copyright grants, permitting a copyright owner to transfer ownership of a copyright “in whole or in part by any means of conveyance or by operation of law.”[25] Section 201(d) further provides, “[a]ny of the exclusive rights comprised in a copyright, including any subdivision of any of the[se] rights, may be transferred as provided by clause (1) and owned separately.”[26] By eliminating the distinction between exclusive licenses and assignments, the Act considers whether a copyright has been “transferred,” meaning either an assignment (transferring legal title) or an exclusive license (transferring an exclusive permission to use).[27]

Included in a copyright owner’s bundle of exclusive rights is the right to enforce a copyright: 17 U.S.C. Section 501(b) provides that a “legal or beneficial owner of an exclusive right under a copyright is entitled. . . to institute an action for any infringement of that particular right committed while he or she is the owner of it.”[28]

The Ninth Circuit’s Restrictive Approach

In their motion to dismiss, Cyrus and certain of her co-defendants cite Tresona Multimedia, LLC v. Burbank High School Vocal Music Ass’n., a Ninth Circuit copyright infringement action in which the plaintiff claimed that a high school’s show choirs failed to obtain licenses for their use of copyrighted sheet music.[29] In that case, the plaintiff acquired its copyright interests from a few co-owners through a series of assignments of rights granting it the “exclusive, non-transferable. . . right . . . to issue Copyright Use Licenses.”[30] The Ninth Circuit weighed heavily the fact that the plaintiff received its interest in the allegedly infringed songs from individual copyright co-owners, without the other co-owners’ consent, and therefore merely held “non-exclusive licenses in the relevant works.”[31] Accordingly, the Ninth Circuit held that the plaintiff, as a non-exclusive licensee, lacked standing to sue for infringement under Section 501(b).[32]

In reaching the Tresona decision, the Ninth Circuit relied on its prior decision in Sybersound Records, Inc. v. UAV Corp., in which the plaintiff sued competitor karaoke record producers for unauthorized use of certain songs on their records.[33] There, the plaintiff claimed to have acquired an ownership interest in those songs by way of a written agreement with TVT Music Publishing, an original co-owner of the songs.[34] The written agreement stated that the plaintiff was an “exclusive assignee and licensee of TVT’s copyrighted interests for purposes of karaoke use, and also the exclusive assignee of the right to sue to enforce the assigned copyright interest.”[35] The plaintiff claimed that all co-owners of the relevant songs understood that each could provide licenses only for his respective share, and that an authorized karaoke recording required a written license from each co-owner.[36]

Rejecting the plaintiff’s argument that the exclusivity of its rights should be based on the nature of its agreement with TVT Music Publishing, and relying on Section 201(d) of the Copyright Act, the Ninth Circuit held that a co-owner of the copyrights could not have granted an exclusive karaoke-use interest to the plaintiff, because the co-owner was not the exclusive owner of that specific interest in the copyrights (assuming that such an exclusive karaoke-use interest existed).[37] The Ninth Circuit noted that a co-owner “may not limit the other co-owner’s independent rights to exploit the copyright,” using this logic to find that TVT Music Publishing, as co-owner of the copyright, could grant only a non-exclusive license of its own share in the copyright to the plaintiff without the other co-owners’ consent.[38] Notably, the Ninth Circuit did not cite authority for its reading of Section 201(d). As the holder of a non-exclusive license, the Ninth Circuit held, the plaintiff did not have standing to bring an action for copyright infringement under Section 501(b).[39]

In its opposition to the pending motion to dismiss, Tempo Music argues that Cyrus and certain of her co-defendants’ reliance on Sybersound is misplaced, because in Sybersound, the Ninth Circuit held that a co-owner could not grant an exclusive license for use of any individual rights under Section 106 without the consent of his or her co-owners; whereas, here, Tempo Music alleges, it acquired Lawrence’s entire copyright interest as a co-owner of the work.[40]Tempo Music claims that Cyrus and certain of her co-defendants’ reliance on Tresona is inapposite for the same reason.[41]

Significantly, the Ninth Circuit is not alone in its narrow reading of these principles. Although the Second Circuit has held that co-owners of an exclusive right may bring an infringement action without joining all other co-owners,[42] in Davis v. Blige, the Second Circuit held that one co-owner cannot transfer his or her exclusive rights in the work without all other co-owner’s permission.[43]To hold otherwise, the Second Circuit insisted, would “convey the interests of [other] co-owners without their express written consent,” in violation of the Copyright Act.[44]

The Takeaway

In construing the divisibility principles embodied in the Copyright Act, the Ninth Circuit has seemingly conflated two distinct principles of copyright law: (1) a co-owner’s ability to transfer its own exclusive rights in its share of the work, and (2) a co-owner’s inability to unilaterally transfer exclusive rights in the work as a whole. As a result, it is nearly impossible for co-owners of copyrights to effectively transfer their entire proportional copyright interests, and for those who have acquired exclusive interests in a share of a work to enforce their rights through copyright infringement actions.

Broadcast Music Inc. (BMI), the American Society of Composers, Authors and Publishers (ASCAP), the National Music Publishers’ Association (NMPA), and the Nashville Songwriters Association International (NSAI) have all cautioned that the Ninth Circuit’s restrictive approach to divisibility and transferability principles may act as an impediment to copyright owners seeking to enforce their rights.[45] Copyright scholars have also disapproved of the Ninth Circuit’s approach. Professor Nimmer wrote, “[t]he determination of whether a grant is exclusive or non-exclusive depends on the grant,” urging that “[t]he contrary conclusion in Sybersound threatens to vitiate enforcement in general of joint works.”[46] He suggests that “[t]o avoid constantly shifting legal treatment, the only solution is to treat grants with respect to the grantor, not with respect to the work as a whole.”[47] Notably, some Tempo Music defendants, including Sony Music Publishing, chose not to join in Cyrus’s motion to dismiss, instead filing an answer to Tempo Music’s complaint. We will continue to monitor this case to see whether the Ninth Circuit will double down on its logic in Tempo Music Investments, LLC v. Miley Cyrus.

[1] Tempo Music Invs., LLC v. Miley Cyrus, No. 2:24-CV-07910 (C.D. Cal. filed Sept. 16, 2024) (Westlaw).

[2] See Compl. For Copyright Infringement, Tempo Music Invs. LLC v. Miley Cyrus, No. 2:24-CV-07910 (C.D. Cal. filed Sept. 16, 2024) (Westlaw).

[3] Id. ¶ 45.

[4] Id. ¶ 7.

[5] Id. ¶ 68.

[6] Id. ¶ 49–60.

[7] Songwriter Defs.’ Mem. of P. & A. in Supp. Of Mot. to Dismiss at 1–2, Tempo Music Invs., LLC v. Miley Cyrus, No. 2:24-CV-07910 (C.D. Cal. filed Sept. 16, 2024) (Westlaw).

[8] Id.

[9] Id. at 6 (citing 17 U.S.C. § 501(b); H.R. Rep. No. 94-1476, 94th Cong., 2nd Sess. 1976, at 159).

[10] Id. at 11.

[11] Pl. Tempo Music Invs., LLC’s Opp. to the Songwriter Defs.’ Mot. to Dismiss at 1, Tempo Music Invs. LLC v. Miley Cyrus, No. 2:24-CV-07910 (C.D. Cal. filed Sept. 16, 2024) (Westlaw).

[12] Id. at 2.

[13] Id. at 5–6 (citing Corbello v. DeVito, 777 F.3d 1058, 1066 n.5 (9th Cir. 2015); Yellowcake, Inc. v. Morena Music, Inc., No. 1:20-cv-0787-AWI-BAM, 2021 WL 3287719, at *3 (E.D. Cal. Aug. 2, 2021); Brownstein v. Lindsay, 742 F.3d 55, 68 (3d Cir. 2014); Davis v. Blige, 505 F.3d 90, 99 (2d Cir. 2007)).

[14] Pl. Tempo Music Invs., LLC’s Opp. to the Songwriter Defs.’ Mot. to Dismiss at 6, Tempo Music Invs. LLC v. Miley Cyrus, No. 2:24-CV-07910 (C.D. Cal. filed Sept. 16, 2024) (Westlaw).

[15] Id.

[16] Id. at 7.

[17] Id. at 2.

[18] Id. at 12–13.

[19] 17 U.S.C. § 106.

[20] Id. § 201(a); H. R. Rep. No. 94-1476, at 121 (1976).

[21] Gardner v. Nike, Inc., 279 F.3d 774, 778 (9th Cir. 2002).

[22] Id.

[23] Brief for National Music Publishers’ Association et al. as Amici Curiae Supporting Appellants at 5, Tresona Multimedia, LLC v. Burbank High Sch. Vocal Music Assn., 953 F.3d 638 (9th Cir. 2020) (No. 93-2) (quoting Abend v. MCA, Inc., 863 F.2d 1465, 1469-70 (9th Cir. 1988), aff’d, 495 U.S. 207 (1990)).

[24] See § 201.

[25] Id. § 201(d)(1).

[26] Id. § 201(d)(2).

[27] Id. § 101; Minden Pictures, Inc. v. John Wiley & Sons, 795 F.3d 997, 1003 (9th Cir. 2015).

[28] 17 U.S.C. § 501(b).

[29] Tresona Multimedia, LLC v. Burbank High Sch. Vocal Music Assn., 953 F.3d 638, 642 (9th Cir. 2020).

[30] Id. at 643.

[31] Id. at 644.

[32] Id.

[33] Id. at 645-646; Sybersound Records, Inc. v. UAV Corp., 517 F.3d 1137 at 1141 (9th Cir. 2008).

[34] Sybersound Records, Inc., 517 F.3d 1137 at 1142.

[35] Id.

[36] Id.

[37] Id. at 1146.

[38] Id.

[39] Id.

[40] Pl. Tempo Music Invs., LLC’s Opp. to the Songwriter Defs.’ Mot. to Dismiss at 9, Tempo Music Invs. LLC v. Miley Cyrus, No. 2:24-CV-07910 (C.D. Cal. filed Sept. 16, 2024) (Westlaw).

[41] Id. at 10.

[42] See e.g., Structured Asset Sales, LLC v. Sheeran, 120 F.4th 1066, n. 3 (2d Cir. 2024).

[43] Davis v. Blige, 505 F.3d 90, 99 (2d Cir. 2007).

[44] Id.

[45] See generally Brief for National Music Publishers’ Association et al. as Amici Curiae Supporting Appellants, Tresona Multimedia, LLC v. Burbank High Sch. Vocal Music Assn., 953 F.3d 638 (9th Cir. 2020).

[46] 1 Nimmer on Copyright §6.10[A][2][d] (Dec. 2019).

[47] Id.