(S.D. N.Y., 2018, cv-2238)
“We Run Things”
Miley Ray Cyrus
“We Can’t Stop”
Updated Comment by Awani Kelkar
On Feb 13, 2019 US Magistrate Judge. Robert W. Lehrburger denied Miley Cyrus’s motion to dismiss Jamaican songwriter Michael May’s complaint. He also determined, however, that defendants should be permitted to limit pre-filing damages to a three year period. The entire report is premised on a strict application of two legal principles: 1) reasonable inferences should be drawn in the plaintiff’s favor and 2) a motion to dismiss should not be granted when further factual development is required. While admitting that the defendants might ultimately prevail on defenses of lack of originality in the phrase ‘We run things, things don’t run we’ and fair use, Judge Lehrburger nevertheless concluded that ‘the court cannot make that determination on this motion.’
On the issue of originality, Judge Lehrburger suggests that the phrase ‘We run things, things don’t run we’ is a combination of “Wi run tings. Tings nuh run wi”, the original Patois saying, and creative usage of the English language. While the standard English version appears to be is a mere translation of the patois, Lehrburger contends that ‘alleging what the Phrase would read as in Jamaican Patois suggests a hypothetical.’ Elsewhere in his report, however, he notes that ‘if May applied for copyright protection for the Phrase alone, he likely would be denied.’ But he also suggests that since the allegedly copied phrase forms the ‘heart of May’s song,’ and features significantly in Cyrus’s rendition, the copying is substantial, based on the similarity of the phrases, not the songs as a whole.
In response to Lehrburger’s findings, on Feb 27, 2019 the defendants filed written objections to this Report. Their main objections are that: 1) in determining similarity a holistic comparison of the two songs must be made, not merely phrases of them and 2) The phrase in question cannot be protected by copyright law and 3) there is no basis for a fragmented literal similarity claim and 4) a dismissal should be granted since defendants can establish fair use.
Comment by Charles Cronin
The most impressive aspect of the Complaint is its length – a meandering ramble of nearly 30 pages – and the fact that it involves a plaintiff from the nation of Jamaica represented by someone from the neighborhood of Jamaica (best known as the transfer point for the JFK shuttle). Most of its content is irrelevant and repetitive information about the financial success ( the true motivation of this claim) of Miley Cyrus, and her handlers’ canny transformation of her public image from a tween TV character (waning popularity and profitability of “Hannah Montana”) into a more lucrative jade (resulting in the terms “skanky” and “slut” surfacing in a remarkable number of sites Google retrieves for searches for of her name).
The embarrassingly feeble basis of the infringement claim is that the disputed songs share variants of the unprotectable phrase “we run things; things don’t run us.” This expression is, apparently, commonly heard in the plaintiff’s Jamaica – no doubt a sentiment stemming from Spain and England’s centuries of colonization and enslavement on the island. But Complaint’s attempts to manufacture a claim from this insignificant commonality verge on incoherent:
¶ 53 “… In Defendants’ substantially similar lyrical and thematic version, Plaintiff May’s original, creative and unique lyrical phrase is repeated by Defendants using the literal English translation, but substantially similar phraseology to Plaintiff May’s, while wholly maintaining the unique Patois phraseology, “We run things. Things don’t run we.”
Successful pop music performers, and the companies associated with them, should not settle contrived claims like this one. Doing so may seem financially expedient for the defendants, but contingency-fee plaintiff attorneys (typically lacking the resources and experience for full-blown litigation) seek precisely these quick payoffs, and such capitulation only encourages similarly motivated allegations against other financially successful entertainers.
Defendants’ Motion to Dismiss (PDF)