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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