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Johnston v. Kroeger

Fifth Circuit affirms dismissal on summary judgment of copyright infringement suit over Nickelback’s hit song “Rockstar,” holding insufficient evidence existed of both access and striking similarity to plaintiff’s composition “Rock Star.”

Musician Kirk Johnston of the band Snowblind sued the band Nickelback’s members, record label and music publisher, claiming defendants’ hit song “Rockstar” infringed Johnston’s registered copyright in a musical composition titled “Rock Star.” After the district court granted summary judgment to defendants, finding insufficient evidence of copying to sustain the infringement claim, Johnston appealed. The Fifth Circuit affirmed, holding that Johnston had failed to provide sufficient evidence of either defendants’ access to his composition or the requisite “striking similarity” between the two works.

Johnston wrote the musical composition for the song “Rock Star” in 2001, while Nickelback released its song “Rockstar” in 2005. Johnston did not bring suit until 2020, claiming that he was unaware of the popular Nickelback song until 2018. Accepting that factual allegation as true, the Fifth Circuit panel nonetheless agreed with the district court that Johnston had failed to establish the essential element of factual copying. Lacking any direct evidence of copying, Johnston was forced to rely on either a combination of access and probative similarity, or striking similarity between the two works, to carry his burden on the copying element. The Fifth Circuit held that Johnston’s evidence under either prong was woefully inadequate.

Johnston’s primary evidence supporting defendants’ access to his composition “Rock Star” was that Nickelback and Johnston’s band Snowblind had been traveling in similar music circles and that representatives from Nickelback’s record label and management group had frequently attended live shows at two venues where Snowblind had performed during the relevant period. In the Fifth Circuit’s view, without evidence that anyone associated with Nickelback had actually attended a specific Snowblind performance, the record did not support the “leaps of logic” required to infer access. The court held that Johnston’s argument amounted to nothing more than speculation, especially in light of sworn testimony from Nickelback’s members and relevant executives that they had never heard of Johnston’s song.

Johnston also argued that the district court’s failure to consider “stripped down” versions of the songs constituted error. The Fifth Circuit rejected that argument.

The Fifth Circuit likewise rejected Johnston’s argument that the district court should have applied the “more discerning ordinary observer” test, clarifying that it only applies to an analysis of “substantial similarity” after a plaintiff has established factual copying. 

On the merits, Johnston attempted to prove striking similarity with expert testimony analyzing the supposedly similar hooks and lyrics of the two compositions. The Fifth Circuit was unconvinced that any melodic and lyrical similarities were so great as to preclude “all other explanations but copying.” The court reasoned that many other songs in the rock music genre, including other Nickelback songs, shared the same similarities. The court further rejected the expert’s attempts to categorize lyrics into common themes such as sports for the purpose of demonstrating similarity, noting, for example, that lyrics about football in Johnston’s “Rock Star” were not sufficiently similar to lyrics about baseball in Nickelback’s “Rockstar,” despite the general classification. In sum, Johnston did not raise a factual issue concerning striking similarity. 

Summary prepared by Melanie Howard and Jordan Meddy