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Court should dismiss Rockstar song-theft lawsuit against Nickelback, magistrate judge recommends

By | Published on Monday 20 February 2023


A magistrate judge in a court in Texas has recommended that a song-theft lawsuit against Nickelback be dismissed, because the plaintiff’s explanation for how the band might have had access to his earlier track is insufficient.

Kirk Johnston, vocalist with the band Snowblind Revival, went legal in 2020, claiming that Nickelback’s 2005 track ‘Rockstar’ ripped off a song he had written with the same title four years earlier.

Unsurprisingly, the members of Nickelback – who deny having ever heard of the earlier song or Snowblind Revival before Johnston went legal – called for the song-theft lawsuit to be dismissed.

But magistrate judge Susan Hightower, when initially considering the case, said that she wasn’t convinced there were grounds for dismissal.

Though, she added at the time, the credibility of Johnston’s theory for how Nickelback might have accessed the earlier song was still to be determined. That would depend on what evidence he could provide to back up his claim that his song had likely reached Nickelback via some record label execs he had played it to.

If the evidence backing up that theory was strong, she went on, there were sufficient similarities between the two ‘Rockstar’ songs for Johnston’s claims of copyright infringement to go before a jury.

However, Hightower says in a new written opinion on the case published last week, Johnston has failed to provide good evidence to back up his grand theory. In fact, she writes, “Johnston has presented no probative evidence that defendants had a reasonable opportunity to hear plaintiff’s work”.

“Viewed in the light most favourable to him, Johnston’s evidence at most demonstrates a ‘bare possibility of access'”, she adds. Regarding the idea that label execs working with Nickelback heard and shared the earlier ‘Rockstar’ song, “Johnston offers no significantly probative evidence that any of [those] executives actually heard plaintiff’s work, much less shared it with Nickelback”.

With no real evidence to back up the “they got if via their label” theory, Johnston would need to show that the two ‘Rockstar’ songs are so similar that those similarities “can only be explained by copying, rather than by coincidence, independent creation or prior common source”.

And, Hightower concludes, while there are some similarities between the two songs, those similarities are not that striking. With all that in mind, she recommends that the district court overseeing the dispute grant Nickelback’s motion for dismissal.