In her August 2018 motion to dismiss the complaint, Cyrus and her co-defendants offered three arguments: 1) that the two songs are not substantially similar; 2) that the use of the phrase qualifies as fair use; and 3) that May is not entitled to statutory damages or attorneys’ fees due to a three-year statute of limitations in U.S. copyright law.
Kaplan’s order found that the first two arguments are “without merit” but granted the third, ordering that May not be entitled to statutory damages, attorneys' fees and actual damages prior to March 13, 2015 -- exactly three years prior to the songwriter's original complaint.
“With regard to defendants’ third objection, Section 412 of the Copyright Act imposes a bright-line rule barring the recovery of statutory damages and attorneys fees for infringement occurring after registration if that infringement is part of an ongoing series of infringing acts and the first act occurred before registration,” Kaplan writes. “The Court has carefully reviewed this matter and determined that because defendants’ first alleged infringement occurred in 2013—four years before plaintiff registered the work in question—application of the bright-line rule precluding the award of statutory damages and attorneys fees is appropriate in this case.”
Kaplan's ruling hews closely to a February recommendation by U.S. Magistrate Judge Robert Lehrburger, who recommended that Kaplan deny Cyrus's overall motion to dismiss while limiting actual damages in the case.
Other defendants in the case include Sony Music Entertainment (parent company of Cyrus’s label RCA), Cyrus’s company Smiley Miley Inc., “We Can’t Stop” songwriters Theron and Timothy Thomas, producer Michael Len Williams II (a.k.a. Mike Will Made-It) and Cyrus’ former manager Larry Rudolph.
Representatives for the defendants did not immediately respond to a request for comment.
“We Can’t Stop” was the first single from Cyrus’s 2013 album Bangerz. It peaked at No. 2 on the Billboard Hot 100.
Correction: A previous version of this story misidentified Larry Rudolph as Cyrus' manager. She is currently managed by Adam Leber. We regret the error.