NICKELBACK has fired back at a Texas singer over 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.”
Now, in an answer to Johnston‘s original complaint, NICKELBACK stated that “the two songs sound nothing alike.” The band went on to say that “Johnston failed to identify any specific lyrical similarities between the works at issue; he could only conceivably point to the titles of the two works and ‘lyrical themes’. Titles are not protectable by copyright, and their similarity cannot give rise to an infringement claim. Nor does copyright protect the commonplace lyrical theme of imagining being a rock star.”
NICKELBACK wrote in the court document: “As for the music, it is evident to an ordinary observer that the sound recording of [Johnston‘s song] has a steady, driving guitar beat, whereas [NICKELBACK‘s ‘Rockstar’] does not and is obviously slower. The two songs are not in the same key; [Johnston‘s song] is in a major key, whereas [NICKELBACK‘s ‘Rockstar’] is in both major and minor keys. Further, the styles of the two works are different. Even [Johnston] acknowledges that his band SNOWBLIND REVIVAL and NICKELBACK play different genres of music: ‘Unlike NICKELBACK‘s hard rock sound, SNOWBLIND REVIVAL would be considered an alternative rock band with more indie/eclectic roots.’ And most importantly, the melodies of [Johnston‘s song] and [NICKELBACK‘s ‘Rockstar’] sound nothing alike.”
NICKELBACK also pointed out that Johnston “provides no details” of his purported meetings with record-label higher-ups, “such as the names of the record label representatives with whom he allegedly met, where the meetings took place, or even when the meetings took place.” The band also claimed that Johnston “has failed to allege any means by which [his song] could have ended up in the hands of the individual members of NICKELBACK who composed ‘Rockstar’. None of these allegations describe a chain of events that links [Johnston‘s song] to the creation of [NICKELBACK‘s ‘Rockstar’].”
Johnston is seeking damages for copyright infringement and an injunction against further infringement.
Last month, 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.
