Plaintiff
Plaintiff
Plaintiff
KIRK JOHNSTON, §
Plaintiff §
§
v. §
§
CHAD KROEGER, MICHAEL §
KROEGER, RYAN PEAKE, Case No. 1:20-cv-00497-RP
§
DANIEL ADAIR, ROADRUNNER
§
RECORDS, INC., and WARNER/
CHAPPELL MUSIC, INC., §
Defendants §
Now before the Court are (1) Plaintiff’s Motion for Partial Summary Judgment on Defendants’
Affirmative Defense of Statute of Limitations and Application of the Discovery Rule to Plaintiff’s
Damages (Dkt. 58) and (2) Defendants Chad Kroeger, Michael Kroger, Ryan Peake, Daniel Adair,
Roadrunner Records, Inc., and Warner Chappell Music, Inc.’s Motion for Summary Judgment
(Dkt. 59), both filed December 16, 2022, and the associated response and reply briefs. By Text
Orders entered January 3, 2023, the District Court referred the motions to this Magistrate Judge
for a report and recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B), Federal Rule of Civil
Procedure 72, and Rule 1(d) of Appendix C of the Local Rules of the United States District Court
I. Background
Plaintiff Kirk Johnston brings this copyright infringement suit against Chad Kroeger, Michael
Kroeger, Ryan Peake, Daniel Adair, Roadrunner Records, Inc., and Warner Chappell Music, Inc.
Defendants are the individual members of the group Nickelback and the record label and musical
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publishing company that distribute Nickelback’s work. Johnston alleges that Nickelback’s song
Rockstar (“Nickelback’s Work”), released in 2005, copied his original musical composition
Rock Star (“Plaintiff’s Work”), which he wrote in 2001 while a member of the band Snowblind.
Johnston holds a federal copyright registration for Plaintiff’s Work, U.S. Copyright No. PA 2-216-
632. Dkt. 59-1 at 304. The parties now bring cross-motions for summary judgment.
Summary judgment will be rendered when the pleadings, the discovery and disclosure
materials, and any affidavits on file show that there is no genuine dispute as to any material fact
and that the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a); Celotex
Corp. v. Catrett, 477 U.S. 317, 323-25 (1986); Washburn v. Harvey, 504 F.3d 505, 508 (5th Cir.
2007). A dispute over a material fact is “genuine” if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). When ruling on a motion for summary judgment, the court is required to view all inferences
drawn from the factual record in the light most favorable to the nonmoving party. Matsushita Elec.
Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986); Washburn, 504 F.3d at 508. A court “may
not make credibility determinations or weigh the evidence” in ruling on a motion for summary
judgment. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000); see also
Once the moving party has made an initial showing that there is no evidence to support the
nonmoving party’s case, the party opposing the motion must come forward with competent
summary judgment evidence of the existence of a genuine fact issue. Matsushita, 475 U.S. at 586.
Mere conclusory allegations are not competent summary judgment evidence, and thus are
insufficient to defeat a motion for summary judgment. Turner v. Baylor Richardson Med. Ctr.,
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476 F.3d 337, 343 (5th Cir. 2007). Unsubstantiated assertions, improbable inferences, and
unsupported speculation also are not competent summary judgment evidence. Id. The party
opposing summary judgment must identify specific evidence in the record and articulate the
precise manner in which that evidence supports its claim. Adams v. Travelers Indem. Co. of Conn.,
465 F.3d 156, 164 (5th Cir. 2006). If the nonmoving party fails to make a showing sufficient to
establish the existence of an element essential to its case and on which it will bear the burden of
proof at trial, summary judgment must be granted. Celotex, 477 U.S. at 322-23.
On cross-motions for summary judgment, the Court reviews each party’s motion
independently, in the light most favorable to the non-moving party. Amerisure Ins. Co. v.
Navigators Ins. Co., 611 F.3d 299, 304 (5th Cir. 2010).
The Court first takes up Defendants’ motion for summary judgment on Johnston’s sole claim
of copyright infringement. If Defendants prevail on their motion, Johnston’s motion for partial
A claim for copyright infringement has three elements: (1) ownership of a valid copyright;
(2) factual copying; and (3) substantial similarity. Armour v. Knowles, 512 F.3d 147, 152 (5th Cir.
2007) (per curiam). Defendants do not challenge Johnston’s copyright ownership, satisfying the
first element of infringement. The Court turns to the second element, copying, which is dispositive.
A. Factual Copying
To establish factual copying, a plaintiff must show that the defendant actually used the
copyrighted material to create his own work. Batiste v. Lewis, 976 F.3d 493, 502 (5th Cir. 2020).
Absent direct evidence of copying, a plaintiff can raise an inference of factual copying from
“(1) proof that the defendant had access to the copyrighted work prior to creation of the infringing
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work and (2) probative similarity.” Positive Black Talk Inc. v. Cash Money Recs., Inc., 394 F.3d
357, 368 (5th Cir. 2004) (quoting Peel & Co. v. Rug Mkt., 238 F.3d 391, 394 (5th Cir. 2001)),
abrogated on other grounds by Reed Elsevier, Inc. v. Muchnik, 559 U.S. 154 (2010). A plaintiff
can show probative similarity by pointing to “any similarities between the two works,” even as to
unprotectable elements, “that, in the normal course of events, would not be expected to arise
Batiste, 976 F.3d at 502. Thus, to survive summary judgment on the second element of copyright
infringement, Johnston must raise a genuine dispute as to either a combination of access and
B. Access
To establish access,
a plaintiff must show that the person who created the allegedly
infringing work had a reasonable opportunity to view or hear the
copyrighted work. A bare possibility of access isn’t enough, nor is a
theory of access based on speculation and conjecture. To withstand
summary judgment, then, the plaintiff must present evidence that is
significantly probative of a reasonable opportunity for access.
Id. at 503 (cleaned up). Access may be shown if a third party with possession of a plaintiff’s work
was concurrently dealing with the copyright owner and alleged infringer. Am. Registry of
Radiologic Technologists v. Bennett, 939 F. Supp. 2d 695, 704-05 (W.D. Tex. 2013).
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Having carefully considered the entire record, the Court finds that Johnston has presented no
probative evidence that Defendants had a reasonable opportunity to hear Plaintiff’s Work. All four
members of Nickelback who created the allegedly infringing work Rockstar aver that, before this
litigation, they never heard of Johnston or his band and never heard Plaintiff’s Work or received a
copy of it from Roadrunner or any other source. Adair Dec. ¶ 4, Dkt. 59-1 at 33; Kroeger Dec. ¶ 5,
id. at 41; Peake Dec. ¶ 6, id. at 45; Turton (p/k/a Chad Kroeger) Dec. ¶¶ 18, 21-30, id. at 57-59.
Although Johnston presents no probative evidence that any member of Nickelback ever heard
Plaintiff’s Work or any other song by Snowblind, he argues that his evidence “establishes a
reasonable opportunity to view his work via access from third parties.” Dkt. 61 at 20.
Id. at 20-21. This argument for access via third parties is purely speculative, but even so, it
Johnston submits evidence that CDs including Plaintiff’s Work and three other original songs were
sent to representatives at certain labels, including but not limited to Warner Music Group and
Universal. Johnston Dec. ¶ 4, Dkt. 61-1 at 43; Johnston Tr. at 103:23-104:1, Dkt. 59-1 at 85-86.
1
From 2001 to 2006, Island Def Jam owned a stake in Defendant Roadrunner Records, and Island Def
Jam’s ultimate corporate parent was Universal Music Group. See Rath Dec. ¶ 2, Dkt. 59-1 at 48-49;
Dkt. 61-1 at 52 (stating that “Island Def Jam is one of Universal’s four major divisions”), 53.
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Johnston testified at deposition that an Artist & Repertoire representative from Roadrunner whose
name he could not recall told him he had listened to the demo CD. Johnston Tr. at 174:18-177:12,
Johnston also submits evidence that, in August 2001, Snowblind performed a show at the
Continental Club in New York arranged by Eric Pulido, a friend of his working as a summer
marketing intern at Universal/Motown Records during college. Johnston Dec. ¶ 2, id. at 47.
Johnston states: “I also believe that representatives from Epic and Universal Music Group attended
the show. I also had a conversation with an individual at Roadrunner Records regarding the show,
and I sent a copy of Snowblind’s music including the demo CD containing my work Rock Star to
the A/R Department at the label.” Id. ¶ 3. Pulido shared Snowblind’s press kit with employees in
Universal’s media marketing department, booked and attended the show, and “tried to get people
to come out.” Pulido Tr. at 95:23-96:5, 104:23-109:15, Dkt. 59-1 at 208-09, Dkt. 61-1 at 152-56.
But the three Roadrunner executives identified by Johnston, two of whom worked with
Nickelback, testified that they never heard of Johnston or Snowblind before this lawsuit and never
shared Snowblind’s demo CD or any of its music with Nickelback. Burman Decl. ¶¶ 8-9, Dkt. 59-1
at 38; Rath Decl. ¶¶ 8-9, id. at 50-51; Estrada Tr. at 49:3-50:13, 53:17-54:3, id. at 223-27.
Viewed in the light most favorable to him, Johnston’s evidence at most demonstrates a “bare
possibility of access.” Johnston offers no significantly probative evidence that any of Defendants’
executives actually heard Plaintiff’s Work, much less shared it with Nickelback.
Defendants have demonstrated that Johnston lacks evidence supporting access to Plaintiff’s
Work by Nickelback. Because Johnston has not created a genuine issue of material fact as to access
to Plaintiff’s Work, the Court concludes that his evidence of access is insufficient to withstand
summary judgment.
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C. Striking Similarity
Without proof of access, Johnston must prove factual copying by showing “striking similarity”
between the two works. Batiste, 976 F.3d at 504. “To meet that burden, he must point to
‘similarities . . . that can only be explained by copying, rather than by coincidence, independent
creation, or prior common source.’” Id. (quoting Guzman v. Hacienda Records & Recording
Johnston alleges that “a substantial amount of the music in Rockstar is copied from [his]
original composition Rock Star,” including “substantial portions of the tempo, song form, melodic
structure, harmonic structures, and lyrical themes” Dkt. 1 ¶ 23. Johnston also alleges that “[t]he
Johnston’s Rock Star. The portions copied are both quantitatively and qualitatively substantial to
copyrightable elements of Johnston’s Rock Star, individually and in combination.” Id. ¶ 25.
Johnston submits expert and rebuttal reports from Dr. Kevin Mooney, a musicologist, Senior
Lecturer of music history at Texas State University, and performing guitarist. Dkt. 61-1 at 277,
I believe that a jury will find the similarities between Rock Star and
Rockstar are substantial and significant. From a musicological
perspective, it is my opinion that the jury will hear similarities that are
most evidence in tempo, melodic structure, harmonic structure,
rhythmic structure, and lyrics between the two songs. In particular, the
signature phrase of the two songs, also known as the hook, is
substantially identical both melodically and lyrically.
Dkt. 61-1 at 277. Mooney subsequently prepared a declaration in support of Johnston’s opposition
to Defendants’ summary judgment motion, in which he opines for the first time that the “hooks”
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melodic choices made by Nickelback simply could not have been made
independently or coincidentally. I understand that this factual predicate
results in what is legally referred to as “striking similarity.”
Id. at 258. The “hooks” to which Mooney refers are “gonna be a rock star someday” (repeated nine
times) in Plaintiff’s Work, and “hey, hey, I wanna be a rockstar” (repeated five times) in
Nickelback’s Work. Moody opines that the two hooks contain eight specific melodic similarities.
Defendants submit the expert report of Dr. Lawrence Ferrara, a Professor of Music at New
York University and Director Emeritus of all studies in Music and the Performing Arts in NYU’s
Steinhardt School. Dkt. 59-1 at 310. Ferrara opines that any similarities between the two songs
“are commonplace, coincidental, unremarkable, and not remotely suggestive of copying.” Dkt. 59-
1 at 450. Specifically:
Id. at 449. Ferrara finds that Nickelback’s own body of songs predating Plaintiff’s Work “includes
numerous musical and lyrical ‘fingerprints’ that are also used in Nickelback’s 2005 ‘Rockstar,’”
id. at 311, including many musical aspects of the hook in Nickelback’s Work. Ferrara concludes
that any similar melodic elements between the parties’ songs “are fragmentary, commonplace,
often in Nickelback’s own songs that predate August 2001, and not even barely indicative of
Plaintiff’s expert evidence does not foreclose the conclusion that Nickelback’s Work was
created independently of Plaintiff’s Work. Landry v. Atl. Recording Corp., No. 04-2794, 2007 WL
4302074, at *7 (E.D. La. Dec. 4, 2007). The Court has conducted a side-by-side examination of
the works, carefully listening to and considering all versions of the songs of record. Viewing the
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evidence and drawing inferences in a manner most favorable to Johnston, the evidence does not
establish that the songs are strikingly similar. As an “ordinary listener,” the Court concludes that
a layman would not consider the songs or even their “hooks” to be strikingly similar. Id. (citing
Johnson v. Gordon, 409 F.3d 12, 18 (1st Cir. 2005)). Stated simply, they do not sound alike.
As for the lyrics, Johnston’s expert identifies “eight specific and substantially similar traits
characteristic of life as a rock star.” Dkt. 61-1 at 260-61. The Court considers all of the lyrics in
“Gonna be a rock star someday” “Cause we all just want to be big rock stars”; “Well, we
all just wanna be big rock stars”; “Hey, hey, I wanna be
a rockstar
2. “A tour bus”
“Gonna ride the tour bus because I don’t like jet “I want a new tour bus full of old guitars”
planes”
“Gonna make lots of money” “I’ll need a credit card that’s got no limit”’;
“I’m gonna trade this life for fortune and fame”;
“And live in hilltop houses, driving fifteen cars”
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7. “Things to buy”
“Might buy the Cowboys and that’s how I’ll spend “I want a brand new house on an episode of Cribs”;
my Sundays” “And a king-size tub big enough for ten plus me”; “And
a big black jet with a bathroom in it”
8. “Reference to sports”
“Might buy the Cowboys and that’s how I’ll spend “It’s like the bottom of the ninth and I’m never gonna
my Sundays” win”; “And a bathroom I can play baseball in”
Nickelback’s expert opines that the “rock star” lyrical theme in both songs “was in common
use and widely available” before Plaintiff’s Work was created, and that “[m]any songs dealing
with this theme also share more specific lyrical similarities” with one or both songs. Dkt. 59-1 at
352. Ferrara compares the lyrics in 17 such songs, from “So You Want To Be A Rock And Roll
Star” by The Byrds in 1966 to “Rockstar” by Poison in 2001. Id. at 352-66. Plaintiff’s expert also
submits a chart demonstrating that many of the contemporary rock songs Ferrara identifies share
Mooney’s assertion that some of the lyrics in the two songs are substantially similar borders
on the absurd. This includes, for example, any suggestion that the two baseball analogies in
Nickelback’s Work are evidence that the band copied Johnston’s lyric “might buy the Cowboys”
professional football team simply because both are “references to sports.” But even accepting all
of the shared lyrical “traits” as described by Johnston’s expert, the Court concludes that they are
2
The full lyrics to both songs are included in an Appendix to this Report and Recommendation.
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The lyrics of both songs comprise scènes à faire3 of “outlandish stereotypes and images
associated with being a huge, famous, rock star,” as described by Nickelback lead singer Chad
Turton (professionally known as Chad Kroeger), principal author of Rockstar. Turton Dec. ¶ 11,
Dkt. 59-1 at 55. Turton avers that Nickelback’s brainstorming session to write the Rockstar lyrics
“was hours of spitting out ridiculous things that our imagined rock star would want; the ideas that
made us smile or laugh the most ultimately made it into the song.” Id.
Where both songs evoke similar themes, they are rendered dissimilar through the vivid detail
of the original expression in Nickelback’s lyrics. So while Nickelback’s lyrics “Gonna join the
mile high club at thirty-seven thousand feet”; “The girls come easy and the drugs come cheap”;
and “Everybody’s got a drug dealer on speed dial” evoke the timeworn trope of sex, drugs, and
rock ’n roll, they are not similar to Johnston’s naked lyrical longing to “Live life in the fast lane.”
Johnston fails to raise a fact issue as to striking similarity between the two songs.
D. Conclusion
Johnston raises no fact issue of access or striking similarity and so has not shown that there is
a genuine dispute for trial as to factual copying. Factual copying is an element essential to his
copyright infringement case, on which he would bear the burden of proof at trial. Because Johnston
fails to raise a genuine issue of material fact as to factual copying, he cannot establish copyright
infringement as a matter of law. This Magistrate Judge therefore recommends that the District
3
Ideas are not protectable in copyright; only particular expressions of ideas may be protected. Busti v.
Platinum Studios, Inc., No. A-11-CA-1029-SS, 2013 WL 12121116, at *6 (W.D. Tex. Aug. 30, 2013)
(citing 17 U.S.C. § 102(b)). “Scenes a faire,” including “expressions that are standard, stock or common to
a particular subject matter,” are not subject to copyright. Id.; see also Morrill v. Stefani, 338 F. Supp. 3d
1051, 1058 (C.D. Cal. 2018) (stating that “scènes à faire—stock or standard features that are commonly
associated with the treatment of a given subject—are unprotectable”); Brainard v. Vassar, 625 F. Supp. 2d
608, 619 (M.D. Tenn. 2009) (“In any country song discussing the past and future ‘good old days,’ the
subjects of drinking, socializing, and courting are clearly scenes a faire.”).
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not discussed or agreed upon by all parties and essentially amounts to an additional 25 pages of
briefing and argument disguised as Appendix materials.” Dkt. 61 at 5-6. The Court hereby
Undisputed Facts.”
Johnston’s summary judgment evidence. Dkt. 64-2. In view of the Court’s recommendation,
Defendants’ objections are OVERRULED and their motion to strike DENIED AS MOOT.
V. Recommendation
For the foregoing reasons, the undersigned Magistrate Judge RECOMMENDS that the
District Court GRANT Defendants Chad Kroeger, Michael Kroger, Ryan Peake, Daniel Adair,
Roadrunner Records, Inc., and Warner Chappell Music, Inc.’s Motion for Summary Judgment
(Dkt. 59); DENY AS MOOT Plaintiff’s Motion for Partial Summary Judgment on Defendants’
Affirmative Defense of Statute of Limitations and Application of the Discovery Rule to Plaintiff’s
It is FURTHER ORDERED that the Clerk REMOVE this case from the Magistrate Court’s
VI. Warnings
The parties may file objections to this Report and Recommendation. A party filing objections
must specifically identify those findings or recommendations to which objections are being made.
The District Court need not consider frivolous, conclusive, or general objections. See Battle v.
United States Parole Comm’n, 834 F.2d 419, 421 (5th Cir. 1987). A party’s failure to file written
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objections to the proposed findings and recommendations contained in this Report within fourteen
(14) days after the party is served with a copy of the Report shall bar that party from de novo
review by the District Court of the proposed findings and recommendations in the Report and,
except on grounds of plain error, shall bar the party from appellate review of unobjected-to
proposed factual findings and legal conclusions accepted by the District Court. See 28 U.S.C.
§ 636(b)(1); Thomas v. Arn, 474 U.S. 140, 150-53 (1985); Douglass v. United Servs. Auto. Ass’n,
SUSAN HIGHTOWER
UNITED STATES MAGISTRATE JUDGE
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Appendix
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