A Texas federal magistrate judge has told a federal district court that NICKELBACK must face a copyright lawsuit claiming the rock band ripped off its 2005 hit song “Rockstar” from an earlier track called “Rock Star”.

Kirk Johnston filed a lawsuit against NICKELBACK members Chad Kroeger, Michael Kroeger, Ryan Peake and Daniel Adair, as well as the band’s former record label Roadrunner Records and Warner Chappell Music, Inc. and Live Nation Entertainment, Inc. alleging that the NICKELBACK copied his original musical composition, “Rock Star”, which he wrote in 2001 while a member of the band SNOWBLIND REVIVAL.

In August 2001, SNOWBLIND REVIVAL created a master recording of “Rock Star”, along with three other original songs. The band made 15 copies of the master recording and sent them to several record labels, including Universal Music Group and Warner Music Group, of which Roadrunner Records, Inc. and Warner Chappell Music, Inc. are wholly owned indirect subsidiaries. Johnston alleges that NICKELBACK had direct access to Johnston‘s musical composition “Rock Star” as a result of SNOWBLIND REVIVAL‘s marketing efforts.

In January 2005, NICKELBACK released the song “Rockstar” on its album “All The Right Reasons”. 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.”

Johnston seeks damages for copyright infringement and an injunction against further infringement.

On Wednesday (August 11), Magistrate Judge Susan Hightower said in her report and recommendation to Judge Robert Pitman of the U.S. District Court for the Western District of Texas that Johnston‘s complaint sufficiently alleged NICKELBACK‘s members had access to his song “Rock Star”.

“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,” Hightower said.

NICKELBACK had asserted that Johnston cannot state a claim for copyright infringement because “fundamentally, the works at issue are not substantially similar to an ordinary observer.” They argued that the works are so dissimilar as to defeat Johnston‘s claim for copyright infringement as a matter of law.

Having listened to both songs, Hightower found that it is possible for a reasonable juror to determine that the works share protectable elements. Whether Johnston will be able to produce evidence that these similarities rise to the level of “substantial” or “striking” in view of NICKELBACK‘s level of access is yet to be determined, she said.

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