Bid to Undo Nickelback Copyright Win Scrutinized by 5th Circuit

A Texas singer trying to revive his claim that the rock band Nickelback ripped off his work to create their 2006 song “Rockstar” encountered a skeptical Fifth Circuit panel Wednesday.

Judges suggested Kirk Johnston’s 2001 song didn’t sound much like Nickelback’s hit and the rock-star theme is a common trope during arguments at the US Court of Appeals for the Fifth Circuit. A lower court awarded summary judgment for the band members and their record labels, finding Johnston failed to establish Nickelback had accessed his song and that the works weren’t strikingly similar.

The case will address the boundary for disposing of music copyright claims without a jury in a venue with less precedent than the relatively dominant Ninth and Second circuits, which encompass the creative hubs of Los Angeles and New York, respectively. The Fifth Circuit covers Texas, Louisiana, and Mississippi.

Circuit Judge Catharina Haynes suggested that the songs had “a few words that are the same, and don’t sound alike at all.” Johnston has argued the lyrics are substantially similar and that the songs’ hooks are strikingly similar, which he says is enough to establish illicit copying despite various other differences in the music.

Johnston’s band Snowblind Revival released its song “Rock Star” in 2001, and he claimed he sent the recordings to Nickelback’s music publishers. He said in his 2020 complaint he wasn’t aware of their “Rockstar” until shortly before filing the suit. The suit named band members Chad Kroeger, Brandon Kroeger, Ryan Peake and Daniel Adair along with Roadrunner Records Inc. and Warner Chappell Music Inc.

During arguments Haynes asked how Johnston hadn’t heard of the song before then, given its fame—the song was among the multi-platinum-selling band’s highest-charting singles in the US. She contrasted that to his incomplete description of exactly how Nickelback got its hands on Johnston’s much less-known song.

“How can they claim Nickelball heard us but we haven’t heard Nickelball?” Haynes said, apparently misstating Nickelback’s name.

Johnston attorney Sesha Kalapatapu said Johnston knew who Nickelback was, but didn’t listen to popular music on the radio and hadn’t had reason to have heard “Rockstar” until he was remastering his own song. He said directly proving access is “the bane of most” copyright plaintiffs, but also that he doesn’t have to connect every dot but rather demonstrate “a reasonable opportunity for the dots to be connected and let the jury evaluate.”

“Your argument seems to be if you send a CD around, then anybody who ever uses any of the words in your song, you can sue,” Haynes said. Circuit Judge Edith Jones described Johnston’s explanation of access as “possible but highly speculative.”

Similar Enough?

The panel was also skeptical of the degree of similarity between the songs. Infringement hinges on a standard of substantial similarity when access is established, but even absent access, showing striking similarity that’s highly unlikely to be coincidental can also establish infringement.

Johnston’s other attorney to argue Wednesday, Jeffrey Phillips of Spencer Fane, argued the lyrics of the song were substantially similar, despite judges pointing out the commonality of the broader theme and differences in allegedly shared elements; for example linking Nickelback wanting “a bathroom you can play baseball in” and Johnston saying he “Might buy the Cowboys” as sports references, among eight lyrical similarities.

“I don’t know, you think baseball and football are the same. I’m guessing a lot of people would disagree with that proposition,” Haynes said.

Phillips said the hooks were even more similar—strikingly so. He said an expert musicologist had concluded that the shared combination of eight specific melodic similarities in two hooks aren’t a coincidence. It’s not one or two notes, but the combination that matters, he said.

“The jury is entitled to be the person to say ‘OK we have an expert who says that these are building blocks that are just building blocks, and we have an expert who says the sum is bigger than the parts,” Phillips told the panel. “And when you put these building blocks together in the manner in which they were put together, it makes something unique, it makes something memorable, it makes something copyrightable.”

Nickelback band members’ attorney Emily Evitt of Mitchell Silberberg & Knupp LLP argued the eight elements were “basic building blocks” present in many songs, including Nickelback songs recorded prior to 2001.

She also said—in response to Phillip’s suggestion that an acoustic version of each song would be best for a jury to lay the similarities bare—that “regardless of what version of the song the court considers, they’re not similar.” Evitt said the district court “properly exercised a critical gate-keeping function.”

“That would be very dangerous precedent if a plaintiff were able to get to a jury solely by having an expert opine on the ultimate issue of striking similarity,” Evitt said.

Circuit Judge Dana Douglas also sat on the panel.

McKay Law Offices also represents Nickelback and the labels.

The case is Johnston v. Kroeger, 5th Cir., No. 23-50254, Oral argument held 1/10/24.