The US Court of Appeals for the Fifth Circuit affirmed a district court’s summary judgment grant to an alleged song copier, finding neither evidence of factual copying nor striking similarity between the two songs. Kirk Johnston v. Chad Kroeger et al., Case No. 23-50254 (5th Cir. Feb. 19, 2024) (Jones, Haynes, Douglas, JJ.) (per curiam) (non-precedential).

Kirk Johnston is a musician and songwriter who plays guitar for the Texas rock band Snowblind (now called Snowblind Revival). In 2001, he wrote a song called “Rock Star.” Four years later, the Canadian rock band Nickelback released a song called “Rockstar” that became one of its most popular singles. In 2020, Johnston sued Nickelback, its record label and its music publishing company for copyright infringement. Nickelback moved for summary judgment, and the district court referred the motion to a magistrate judge. The judge recommended summary judgment in favor of Nickelback, finding no genuine dispute of material fact as to factual copying and finding that the two songs did not sound alike. The district court accepted the magistrate judge’s recommendation and dismissed Johnston’s infringement claim. Johnston appealed.

The Fifth Circuit reviewed the motion of summary judgment de novo. With respect to the element of factual copying, Nickelback’s members and executives claimed that they had never even heard of Johnston’s song. The Court found Johnston’s circumstantial evidence that Nickelback had access to his song unpersuasive. Johnston said that access could be inferred from the fact that the two bands were “moving in relatively the same circles” and that executives associated with Nickelback likely attended Snowblind’s shows. The Court said that Johnston’s arguments regarding the likelihood that Nickelback had access to his song “Rock Star” required “leaps of logic” not supported by the record and were “mere speculation.”

Johnston also unsuccessfully argued that the district court erred by not applying the “more discerning ordinary observer test” and by considering all versions of the songs on the record rather than just the “stripped down” versions. The Fifth Circuit pointed out that those standards only apply under a substantial similarity analysis, which requires a plaintiff to establish factual copying. Because there was no proof of access, much less copying, Johnston had to show a “striking similarity” between his song and Nickelback’s hit.

Johnston argued that his expert demonstrated that there were clear lyrical and musical similarities between the hooks of the songs, both of which concern the desire to be a rock star. However, the Fifth Circuit noted that the expert’s analysis was unpersuasive as to both the musical and lyrical similarities; concluding that neither was sufficiently similar to preclude all explanations but copying. The other themes in the song that Johnston pointed to as strikingly similar were “making lots of money,” “connections to famous people” and “references to sports.” The Court pointed out that as a general matter, those categories “are mere clichés of being a rockstar that are not unique to the rock genre.” As the Court put it, “[s]inging about being a rockstar is not limited to Johnston.” Moreover, categorizing the lyrics in that way overstated the similarities between the songs. On the theme of sports, for example, Johnston’s song mentions American football and Nickelback’s song mentions baseball.

The Fifth Circuit ultimately found that Johnston’s claim failed because he was unable to establish that Nickelback likely had access to his “Rock Star” song, which in any case the Court found was “simply not sufficiently similar” to Nickelback’s “Rockstar.”

Practice Note: To survive summary judgment on the factual copying element of a copyright infringement claim, a plaintiff must present evidence that goes beyond vague probabilities and speculation. If a reasonable probability of access cannot be established, then the works in question will be analyzed under the higher bar of “striking similarity” rather than “substantial similarity.”