Legal

When musician Tyler Armes first heard Post Malone’s “Circles” in 2019, he claims he immediately texted Dre London, Malone’s manager. In the texts, Armes claimed he had been in the studio on the August 2018 night the song had come together – and that he believed he had played a key role in creating it.

“I was not just someone hanging out in the room,” Armes texted, according to later legal documents. “I was part of the writing process. The entire song (minus the lyrics other than ‘circles’) was laid down that night with the 3 of us in the room together, working together.” A few days later, London allegedly responded: “Just showed Posty the message. He said he remembers. U played a tune on the bass then he played more of it after.”

“Circles” later became a smash hit. The song, “backed by sunny acoustic guitars, swirling percussion and infectious melodies,” reached the top spot on the Hot 100 for three consecutive weeks in November 2019 before ultimately spending 61 weeks on the chart.

But now, four years after those texts, Armes and Malone are headed to a Los Angeles federal courthouse this week for a closely-watched jury trial over that fateful night. Expected to feature testimony from the star himself, the trial will pose tricky questions to jurors – about who’s technically in charge during a studio jam session, and who exactly gets the resulting songwriting credits.

Lawyers for Armes say he clearly did enough to own part of the copyright to “Circles,” and that Malone’s “bad faith refusal” to grant him credit has severely harmed his music career. Malone’s lawyers, meanwhile, say the allegations are “utterly baseless” – and that Armes is just the latest plaintiff to “come out of the woodwork” seeking an “unearned windfall” from a hit song.

“Significant Contributions”

Armes, best known as a member of the Canadian rap rock band Down With Webster, filed his lawsuit in April 2020, seeking a ruling that he was the rightful co-creator of “Circles.” In addition to naming Malone (Austin Richard Post) as a defendant, the lawsuit also named “Circles” collaborator Frank Dukes and Universal Music Group.

In his complaint, Armes claimed he had gone to the studio that night at the urging of Malone’s people, and that Malone at one point had said explicitly: “Let’s write a tune!”

“From approximately 2:00 a.m. on August 8, 2018 until 9:00 a.m. that morning, Armes, Post and Dukes worked together in the studio,” his lawyers wrote in their complaint. “Armes and Dukes co-wrote the chords for the song on the keyboard, and Armes co-wrote and had significant input in the bassline for the song. Armes also had input on the guitar parts in the song, including co-writing the guitar melody which is played in the introduction to the song and which repeats throughout the song.”

After the song was released and Armes reached out, he says Malone offered to give him a 5 percent share of the publishing royalties. But when he tried to negotiate for a better deal, he says the star’s people revoked the offer and refused to give him anything.

“Defendants’ refusal to credit Armes … has resulted in significant harm to Armes’ reputation, career and cost him a host of opportunities,” his lawyer wrote. “Songwriters and composers work their entire lives to create a commercially successful and critically acclaimed song like [‘Circles’].”

Read Armes’ entire complaint here.

“Unearned Windfall”

On the same day that Armes filed his lawsuit, Malone sued him right back – asking a federal judge for a ruling that Armes “did not write or author any portion of the ‘Circles’ composition, and he is not entitled to any of the revenue from the ‘Circles’ composition.”

Malone’s lawyers admitted that Armes had been in the room that night, but said he had not made any serious contributions to the song. And they pointed out that the star and other writers then held subsequent sessions in which they continued to work on the song without Armes present.

“It is an age-old story in the music business that when a song earns the type of runaway success that ‘Circles’ has garnered, an individual will come out of the woodwork falsely claim to take credit for the song, and demand unwarranted and unearned windfall profits from the song,” Malone’s lawyers wrote. “This lawsuit arises from such a story.”

In later motions seeking to end the case without a trial, Malone’s attorneys argued more specifically about the “fatal flaws” in Armes’ allegations. They said his contributions to the song were merely commonplace musical building blocks like chord progressions, meaning they were not sufficiently “original” to be protected by copyright law. And they said that he had not exercised enough “control” over the studio session to count as a co-author.

“Armes admitted he had no control over whether any of his creative suggestions would be incorporated by Post and Dukes into the ‘Circles’ composition,” Malone’s lawyers wrote. “Armes’s contention that because he was present for one early session while Dukes and Post were creating the ‘Circles’ composition … and because he played some instruments there and offered some verbal musical suggestions, he is entitled to joint authorship, is simply incorrect under governing law.”

Read Malone’s entire argument here.

“Shared Equal Control”

Those arguments didn’t sway the judge. In April 2022, U.S. District Judge Otis D. Wright declined to end the case and instead sent it to trial, ruling that Armes might ultimately be able to persuade a jury that he deserved to own a piece of “Circles.”

As for the originality of Armes’s creative contributions, the judge said a jury might look beyond simple individual elements and instead analyze the song more broadly: “A reasonable juror could conclude that all three collaborators took part in these decisions and that the combination of these decisions created something that is not stock or commonplace, despite the fact that it may contain stock or otherwise uncopyrightable building blocks.”

And, just as importantly, the judge said it was unclear whether Malone and Dukes had sole control over what had been included in the song.

“While Dukes may have controlled the laptop, nothing suggests that he or Post possessed any special veto or decision-making power that Armes did not,” Judge Wright wrote in his ruling. “Armes’s evidence, if credited, supports the finding that the three musicians shared equal control in the session, making nonhierarchical contributions to a unitary whole.”

Read Judge Wright’s entire decision here.

“Make Swiss Cheese of Copyrights”

Ahead of the upcoming trial, Malone’s attorneys have sharply disputed one unusual aspect of Judge Wright’s ruling last year. 

In the decision, the judge said the upcoming trial would technically only deal with the ownership of an unfinished “session” song created that August night, and not with the final “commercial” version of “Circles.” But he stressed that a verdict for Armes would still entitle him to substantial royalties from the hit song, since the final version was based on that earlier jam session tune.

A month later, Malone’s lawyers argued that Judge Wright’s approach was simply not how the creation of a copyrighted work is supposed to be analyzed. A final song is a final song, they said, and any earlier versions are merely part of the artistic process – not their own copyrighted creations.

“Splintering a single, final integrated work into many different ‘works’ at its various stages of creation would impermissibly make Swiss cheese of copyrights,” Malone’s lawyers wrote, quoting from a legal precedent that used that analogy. “Characterizing a single musical composition as derivative of its successive writing sessions preceding its final form raises the specter of an endless series of derivative works within one song.”

Lawyers for Armes argued back that the judge’s approach was just fine, and Judge Wright later brushed aside such critiques. But the “Swiss cheese” issue could very well arise again in the courthouse during this week’s trial – and, if Malone loses, will almost certainly serve as a key avenue for him to challenge the verdict at a federal appeals court.

The Courtroom Fight Ahead

The trial, taking place at the U.S. federal courthouse in downtown Los Angeles, will kick off with jury selection on Tuesday morning. It’s expected to run for four days, meaning we could expect a verdict on Friday or early next week.

Though a witness list hasn’t been published, it will likely include Armes, London, Dukes and various others involved in the events of the case, who will testify about what they recall about the session and the days surrounding it. Both sides will also call expert witnesses to testify about complicated technical questions about music and industry practices.

Malone himself will also be there. Back in August, during back-and-forth over potential trial dates, his lawyers confirmed that star will take the witness stand to help defeat Armes’ allegations: “He fully intends to appear to refute plaintiff’s claims.”

The star will be represented by David A. Steinberg, Gabriella N. Ismaj, Christine Lepera and Jeffrey M. Movit of the law firm Mitchell Silberberg & Knupp, an elite music litigation team whose members have defended Katy Perry, Dua Lipa, Jay-Z and other stars in similar cases.

Armes will be repped by Allison S. Hart and Kelsey J. Leeker from the law firm Lavely & Singer, a well-known Hollywood litigation boutique that has represented a slew of A-listers in defamation cases, contract disputes and other legal battles.

More than a year after Cher sued Sonny Bono’s widow Mary Bono over royalties from “I Got You Babe” and other hits, a federal judge has issued an initial ruling refusing to dismiss the case.

Cher claims that her 1978 divorce deal with Sonny gave her a permanent 50% cut from songs written before they split, but that Mary recently stopped paying after she invoked copyright’s termination right. Mary’s attorneys say she was entitled to do so, and that the case should be dismissed.

In a split decision on Tuesday, U.S. District Judge John A. Kronstadt trimmed part of the case, saying any royalties from recording rights regained by Mary should stop going to Cher. But when it comes to the bigger question of the underlying musical compositions, the judge said the divorce agreement might entitle Cher to keep receiving those payments.

“The composition royalties appear to arise solely from the [divorce settlement],” the judge wrote. “On this record, it has not presently been established that [Cher]’s rights to the composition royalties have been terminated.”

In a statement to Billboard following the ruling, Mary’s attorney Daniel Schacht said: “We are happy that the court recognized some of the flaws in Cher’s case at this preliminary stage, and we look forward to resolving the remainder of the case.”

Cher’s attorney declined to comment on the decision.

Sonny and Cher started performing together in 1964 and married in 1967, rising to fame with major hits like “I Got You Babe,” “The Beat Goes On” and “Baby Don’t Go.” But the pair split up in 1974, finalizing their divorce with a settlement agreement in 1978. Under that deal, Sonny retained ownership of their music rights, but Cher was granted a half-share of all royalties.

Bono died in 1998 as the result of skiing accident, leaving Mary in control of those copyrights. And in 2016, she invoked the termination right — a provision of the federal Copyright Act that allows creators or their heirs to win back control of rights they signed away decades prior. Mary sent such notices to Sonny and Cher’s publishers, taking back full control of those copyrights.

Five years later, Cher filed her lawsuit — seeking a ruling the divorce agreement was still in effect and that she was still owed her 50% cut of royalties, regardless of who owns the copyrights now. Mary then fired back a few months later, arguing that the case should be dismissed. Her lawyers said that termination rights were designed to trump all pre-existing agreements, including a divorce agreement.

“Cher’s position would subvert Congress’ intent in enacting the copyright termination provisions: to ensure that authors and authors’ heirs, not grantees or ex-spouses, would benefit from the extended term of copyright,” Bono’s attorneys wrote in December 2021.

In Tuesday’s ruling, Judge Kronstadt denied that motion when it comes to the copyrights for Sonny’s underlying musical compositions, citing language in the divorce agreement that such royalties would be owed “from all sources perpetually.” Based on that language, the judge said the issue “cannot be resolved” until both sides have the chance to offer more evidence and arguments.

The judge did dismiss Cher’s lawsuit to the extent that it deals with royalties from any recording rights that had been terminated by Mary, since Judge Kronstadt said those provisions of the divorce agreement were tied to specific record deals that were no longer in existence. But the extent to which Mary’s termination notices actually went to record companies is unclear; earlier filings in the case only indicated that such notices has gone to publishers.

Read the entire decision here: