'We Can't Stop' Lawsuit Against Miley Cyrus Should Move Ahead, Judge Recommends

Miley Cyrus - Getty - H 2018
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Miley Cyrus can't stop a copyright lawsuit from a Jamaican songwriter — at least not yet.

Michael May in March 2018 sued Cyrus, claiming her song "We Can't Stop" infringes his copyright in a 1988 song called "We Run Things." At issue is whether the phrase "we run things, things don't run we" is protectable and, if it is, whether Cyrus' including it in her song was a fair use. 

The singer in August moved to dismiss May's complaint for failure to state a claim or, alternately, asked the court to rule that he can't recover statutory damages or attorneys' fees because of the three-year statute of limitations. She argues the phrase isn't original enough to warrant copyright protection, that the works aren't substantially similar and, even if infringement were established, incorporating the lyrics is a fair use.

U.S. Magistrate Judge Robert Lehrburger has recommended that district judge Lewis Kaplan largely deny the motion, except to limit actual damages to a three-year window prior to the filing of the complaint. He indicated, though, Cyrus could ultimately prevail. 

"Defendants ultimately may be correct with respect to all three arguments," writes Lehrburger. "But whether that is so may be properly determined at summary judgment, not on this motion to dismiss where reasonable inferences are to be made, and ambiguities resolved, in favor of May, the non-moving party."

May claims he wrote the lyrics at issue in the early 1980s in a combination of English and Jamaican Patios dialect. In 1988, he incorporated the phrase into a song called "We Run Things," in which it is repeated nine times. It is repeated three times in Cyrus' 2013 song, and May alleges the songwriters and producers have publicly stated they incorporate Caribbean culture and melodies into their work.  

"Defendants’ arguments to a large extent are predicated on an incorrect assumption that the Phrase merely is a trivial adaptation of a well-known, preexisting Jamaican saying," writes Lerhburger. "While that ultimately may prove to be true, the Court cannot make that determination on this motion."

Lehrburger looks at the history of the phrase and explains the purely Patios equivalent "wi run tings, tings nuh run we" is now considered a Jamaican proverb. "May’s attorneys recognize that the Phrase, at some point, became 'commonly used' and 'a part of Jamaican culture,'" he writes. "It is not clear how far back use of the Phrase or its variations go, but there is no dispute that the Phrase was widely accessible from multiple sources prior to the release of We Can’t Stop in 2013."

While Lehrburger repeatedly indicated it was simply too early to throw out May's case, he also noted that a preliminary analysis of the fair-use factors strongly indicate a finding in Cyrus' favor.

"The current record suggests several ways in which Defendants may well prevail on the merits, from a determination that the Phrase was not original to May or that May made only trivial changes to a pre-existing strict Patois version of the Phrase, to indisputable proof that Defendants did not copy from May’s song but instead adopted the Phrase from one of many other sources, to facts establishing fair use as a matter of law," writes Lehrburger. "Those determinations, however, must await summary judgment."

The parties will have an opportunity to respond to Lehrburger's recommendation, which is posted in full below, before Kaplan rules on the matter.