By Chris Cooke—

A magistrate judge in the US has recommended that a copyright infringement case being pursued by Jamaican dancehall artist Flourgon against Miley Cyrus should not be dismissed on summary judgement, even though her ‘fair use’ defence is probably a good one.

Flourgon, real name Michael May, sued Cyrus in March last year claiming that Cyrus’s 2013 single ‘We Can’t Stop’ infringed his 1998 track ‘We Run Things’. The dispute centres on a single lyric, with May arguing that Cyrus and her songwriting pals lifted his line “we run things, things no run we” and tweaked it to go: “we run things, things don’t run we”.

The lawsuit noted the popularity of ‘We Run Things’ within reggae and dancehall circles. It then referenced an interview with songwriting duo Rock City – co-writers on the Cyrus song – in which they talked about how reggae culture had influenced ‘We Can’t Stop’. May’s legal filing then argued that Cyrus’s team had taken reggae influences – including his lyric – as part of a plan to re-invent the pop star’s image.

Lawyers for Cyrus and co responded with at least three arguments as to why they felt that May’s copyright claim was invalid: ie that a single lyric isn’t protected by copyright, that Cyrus’s use of it was ‘fair use’, and that May’s lyric in ‘We Run Things’ isn’t in itself original.

Team Cyrus wanted the case dismissed forthwith, but last week magistrate judge Robert Lehrburger recommended that his colleague, district judge Lewis Kaplan, knock back that request. Though, Lehrburger added, Kaplan might want to limit any damages claim by May to just the three years before he filed his lawsuit last year.

According to The Blast, Lehrburger wrote in his recommendation: “In sum, analysis of the relevant factors strongly indicates that defendants’ use of the phrase is a fair use. 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”.

Both sides can now respond to Lehrburger’s recommendation before Kaplan rules on the motion to dismiss.

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