Fifth Circuit Finds Speculation And Clichés Not Enough To Make Musician Plaintiff A Copyright Rockstar – Copyright

Affirming the district court’s award of summary judgment for
the band Nickelback, the Fifth Circuit found a copyright
plaintiff’s circumstantial evidence insufficient to support a
finding that Nickelback had actually copied his work.

Back in 2001, Kirk Johnston, a member of the band Snowblind,
wrote a song called “Rock Star,” for which he holds a
federal copyright registration. Four years later, Nickelback
released a similarly titled song, “Rockstar.” In 2020,
Johnston sued Nickelback’s band members, record label, and
music publisher for copyright infringement, alleging that
Nickelback had copied his original song. The district court
dismissed Johnston’s claim on summary judgment for failing to
raise a genuine dispute of material fact as to the factual copying
element of his copyright infringement claim, and Johnston appealed
to the Fifth Circuit.

The Fifth Circuit explained that when no direct
evidence of factual copying is present, as in this case, factual
copying can be inferred from circumstantial evidence. (Direct
evidence of factual copying, such as a photograph of the defendant actually copying the
plaintiff’s work, is unsurprisingly rare.) To support an
inference of factual copying, the Fifth Circuit requires a
plaintiff to show “either a combination of access and
probative similarity or, absent proof of access, striking
similarity.” In other words, if the parties’ works are
similar enough, a court may infer that the defendant must have
copied the plaintiff’s work, but if the plaintiff cannot show
that the defendant had access to the earlier work, the similarity
must be “striking” to support such an inference.

To establish access, a copyright plaintiff must show that the
defendant had a reasonable opportunity—beyond speculation or
conjecture—to experience the copyrighted work before creating
the infringing work. Nickelback and their executives claimed that
they had never heard of Johnston or his song before he asserted his
infringement claim. In response, Johnston argued that Nickelback
had reasonable access to his song because, among other evidence,
executives associated with Nickelback “likely” attended
Snowblind shows, and both bands were “moving in relatively the
same circles” in the early 2000s. The Fifth Circuit rejected
Johnston’s circumstantial evidence as “mere
speculation” that required “leaps of logic” to infer
reasonable access.

Because Johnston had not shown that Nickelback had access to his
song, the Fifth Circuit analyzed the songs’ similarity under
the higher “striking similarity” standard. The court
explained that this standard requires the plaintiff to show that
the similarities are so significant that they can only be
explained by copying, as opposed to other reasons, such as
coincidence, independent creation, or prior common source. The
court also noted that, in light of the broad structural and
thematic similarities among many popular songs, striking similarity
for musical works must “appear in a sufficiently unique or
complex context.” Johnston argued that the district court had
erred when it did not apply the “more discerning ordinary
observer test” in analyzing similarity, and when it considered
all versions of each song rather than the “stripped down”
versions on which Johnston relied. However, the Fifth Circuit
explained that those standards only apply to the subsequent
analysis of substantial similarity, which becomes relevant only
if a plaintiff first establishes factual copying.

Turning to the evidence of similarity, Johnston argued that the
works were strikingly similar due to their hooks and lyrics.
According to Johnston, his expert showed that the hooks in both
songs had clear lyrical similarities (in that both expressed the
desire to be a rock star) as well as melodic and harmonic
similarities. However, the Fifth Circuit found that these
similarities “were not so great as to preclude all
explanations but copying.” Johnston’s expert also opined
that the songs’ remaining lyrics reflected the same common
themes, including money, famous people, and sports. The Fifth
Circuit rejected this argument, observing that these themes are
“mere clichés of being a rockstar that are not unique
to the rock genre.” Characterizing the lyrics in such broad
categories, according to the court, overstated the similarities
between the songs. Using the sports theme as an example, the Fifth
Circuit pointed out that no reasonable juror would believe that
Nickelback’s lyrics about baseball could only have been created
by copying Johnston’s lyrics about football.

Because Johnston failed to show that Nickelback had reasonable
access to his song and also failed to show that the songs’
similarities could only be explained by copying, he could not
satisfy the factual copying element of his copyright infringement
claim. Accordingly, the court affirmed the summary judgment ruling
in favor of Nickelback.

The case is Johnston v. Kroeger, No. 23-50254 (5th Cir.
Feb. 19, 2024) (per curiam).

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