Rania V. Sedhom is managing partner at Sedhom Law Group
Did Miley Cyrus steal Bruno Mars' song, or was she overly inspired by "When I Was Your Man" when creating "Flowers?"
Time will tell, but this article discusses the effect of this lawsuit and other similar lawsuits on fashion brands that use music and musicians in their ad campaigns. Gucci is utilizing Cyrus' "Flowers" song in its fragrance ad.
That ad is also being utilized by retailers like Sephora, which carries the scent. For now, it doesn't appear that any of the brands are named in the lawsuit but an analysis by each brand and retailer cannot come too soon.
Legal woes
Intellectual property infringement cases typically result in three actions: first, ceasing the use of the infringing mark; second, paying the rightful owner of said mark all profits received from its improper use and third, reimbursement of attorneys fees.
If the court finds that Cyrus infringed upon Tempo Music Investment LLC, a portfolio company featuring Bruno Mars and others, Cyrus may have to stop using "Flowers," pay a royalty for her continued use of it, pay damages and more. If she is ordered to stop using the song, what happens to the Gucci campaign?
Other questions to consider:
- In the agreement between Gucci and Cyrus, is there a clause that provides that Cyrus indemnifies them against allegations of intellectual property infringement?
- Did Gucci executives know, or should they have known, that using Cyrus's song represented an infringement?
- If so, why didn't they stop using the song in the campaign, and if not, what actions is the brand taking now to mitigate its damages, if any?
- What is the consumer sentiment around this controversy? In this tight economy, competing for consumer cash and attention is of utmost importance.
- Did Gucci conduct an appropriate review of the materials submitted by Cyrus to determine whether each element used in the song was free from IP violations?
Minding IP rights
Lawsuits of this nature are not new. Gymshark, London Beauty, Marriott Hotels and Louis Vuitton faced similar lawsuits.
When utilizing music in a campaign, brands are cautioned to properly clear any conflicts by checking each element used in the campaign. By that I mean, don't simply ask if a song is original.
Audit the lyrics to determine whether another artist's song overly inspired them. Paying additional license fees may not cause happiness, but it will result in less pain in the future.
In other words, stay tuned!
Rania V. Sedhom is founding member and managing partner of the Sedhom Law Group, New York. Views shared are purely the author’s. Reach her at rsedhom@bespokelawfirm.com.