On Aug. 11, 2011, Magistrate Judge Susan Hightower ruled that Kirk Johnston’s copyright lawsuit against Nickelback band members Chad Kroeger, Michael Kroeger, Ryan Peake, and Daniel Adair,, as well as Roadrunner Records, Inc. and Warner Chappell Music, Inc., can proceed forward. Judge Hightower ruled that Johnston’s complaint alleged sufficient facts to state a claim that the Nickelback Defendants’ song “Rockstar” infringed the copyright to Johnston’s song “Rockstar.” However, Judge Hightower recommended the dismissal of the lawsuit against Live Nation Entertainment, Inc., the producer of concerts.
Snowblind Revival (Kirk Johnston), “Rockstar”
Nickelback, “Rockstar”
As summarized by Magistrate Judge Hightower, Johnston alleges the following facts in his complaint:
“From the late 1990s through the early 2000s, Snowblind Revival performed its music for A&R (artists and repertoire) representatives from numerous record labels. Id. ¶ 16. Johnston and Snowblind Revival also performed Johnston’s original songs in venues around the United States. Id. ¶¶ 16-17. In August 2001, Snowblind Revival created a master recording of Rock Star, along with three other original songs. Id. ¶ 17. The band made fifteen copies of the master recording and sent them to several record labels, including Universal Music Group and Warner Music Group, of which Defendants Roadrunner Records, Inc. and Warner Chappell Music, Inc. are wholly owned indirect subsidiaries. Id.; Dkt. 24 at 1; Dkt. 25 at 1. Chad Kroeger, Michael Kroeger, Ryan Peake, and Daniel Adair are members of the band Nickelback, which is signed to Roadrunner Records. Dkt. 1 ¶¶ 3-6; Dkt. 21 at 6 n.1. Plaintiff alleges that the Nickelback Defendants had direct access to Johnston’s musical composition Rock Star as a result of Snowblind Revival’s marketing efforts. Dkt. 1 ¶ 18.
“In January 2005, Nickelback released the song Rockstar on its album All the Right Reasons. Id. ¶ 20. The Nickelback band members each are credited as composers and songwriters for Rockstar. Id. Johnston alleges that “a substantial amount of the music in Rockstar is copied from [his] original composition Rock Star,” including “the tempo, song form, melodic structure, harmonic structures, and lyrical themes.” Id. ¶ 23. More than 4.5 million copies of Nickelback’s Rockstar have been sold since its debut in 2005. Id. ¶ 22. Nickelback also has performed Rockstar live in concert hundreds of times. Id. Live Nation has promoted Nickelback’s live concerts at which the song was performed. Id. ¶ 11.”
All of the defendants moved to dismiss the complaint on the grounds that the allegations did not state a copyright claim against them.
A. Sufficient Allegations that Universal Music Group had access to Johnston’s song
A key issue raised by the defendants’ motion to dismiss was whether there were sufficient allegations that the defendants had access to Johnston’s song. The court held that the allegations were sufficient that the Nickelback defendants did via the parent company Universal Music Group, which owned Roadrunner Records, the label for Nickelback. Judge Hightower explained: “Johnston alleges that Snowblind Revival presented the Copyrighted Work to executives from Universal Music Group at in-person meetings and provided them discs containing the song as part of a press kit. Dkt. 1 ¶¶ 16-17. At the time, Nickelback’s label, Roadrunner Records, was a wholly owned subsidiary of Universal Music Group. Dkt. 21 at 10 n.1. These facts, taken as true, could have given the Nickelback Defendants a reasonable opportunity to hear Johnston’s Copyrighted Work. The Nickelback Defendants do not argue that Johnston has failed to meet the pleading requirements for probative similarity in assessing factual copying.Johnston has alleged facts sufficient to raise his right to relief above the speculative level, which is all that is required at the pleading stage.” (The Nickelback defendants did not contest that the two songs had some probative similarities to raise a possible inference of copying, when coupled with the allegations of access.) However, the complaint did not allege sufficient facts of access with respect to the concert producer Live Nation, so Judge Hightower recommended a dismissal of the lawsuit against Live Nation.
B. Substantial Similarities between Two “Rockstar” Songs
Magistrate Judge Hightower rejected the Nickelback Defendants’ next argument that no reasonable jury could find that the two songs were substantially similar. “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 musical and lyrical themes of Nickelback’s Rockstar is substantially, strikingly similar to 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.”
Interestingly, Magistrate Judge Hightower just listened to recordings of the two songs and ruled that ” it is possible for a reasonable juror to determine that the works share protectable elements.”
Songs
Decision
Magistrate Judge Hightower’s ruling on Aug. 11, 2021
Complaint
Docket
https://www.courtlistener.com/docket/17141431/johnston-v-kroeger/
Attorneys
Sesha Kalapatapu and Jeffrey Phillips for Kevin Johnston
Music Infringement 