United States Court of Appeals

for the Fifth Circuit ____________ 

No. 23-50254 

____________ 

Kirk Johnston, 

Plaintiff—Appellant, 

versus

Chad Kroeger; Michael Kroeger; Ryan Peake; Daniel 

Adair; Roadrunner Records, Incorporated; 

Warner/Chappell Music, Incorporated, 

Defendants—Appellees. 

______________________________ 

Appeal from the United States District Court 

for the Western District of Texas

USDC No. 1:20-CV-497

______________________________ 

Before Jones, Haynes, and Douglas, Circuit Judges.

Per Curiam:*

Plaintiff Kirk Johnston brought this copyright infringement suit

alleging a popular band copied the musical composition of his song. Finding 

Johnston failed to produce sufficient evidence of copying, the district court 

_____________________ 

* This opinion is not designated for publication. See 5th Cir. R. 47.5.

United States Court of Appeals

Fifth Circuit

FILED 

February 19, 2024

Lyle W. Cayce

Clerk

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granted summary judgment to the defendants. For the reasons set forth 

below, we AFFIRM. 

I. Background

Johnston is a musician and songwriter who has been a member of a 

band called Snowblind since 1997. Defendants Chad Kroeger, Michael 

Kroeger, Ryan Peake, and Daniel Adair are members of the band Nickelback.

At all relevant times, Defendant Roadrunner Records, Inc. was Nickelback’s 

record label and Defendant Warner Chappell Music, Inc. was Nickelback’s 

music publishing company.

In 2001, Johnston wrote and created the musical composition for the 

song Rock Star. Johnston holds a federal copyright registration for this song. 

Four years later, Nickelback released a song with a similar title called 

Rockstar. Johnston alleges Nickelback copied the original musical 

composition of his song. In 2020, Johnston initiated this suit for copyright 

infringement.

1 Nickelback moved for summary judgment, and the district 

court referred the motion to a magistrate judge. The magistrate judge 

recommended summary judgment in favor of Nickelback because Johnston 

had not raised a genuine dispute of material fact as to factual copying; indeed, 

the two songs did not sound alike. Over Johnston’s objection, the district 

court adopted the magistrate judge’s recommendation and dismissed 

Johnston’s claim. Johnston timely appealed.

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1 Johnston claims he was unaware of Nickelback’s song until 2018. While the court 

must accept that statement at the summary judgment stage, it is an odd contention 

considering how popular the Nickelback song was.

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II. Jurisdiction & Standard of Review

The district court properly exercised jurisdiction over Johnston’s 

claim under 28 U.S.C. §§ 1331 and 1338(a). We have appellate jurisdiction 

over the district court’s final judgment pursuant to 28 U.S.C. § 1291.

We review a motion for summary judgment de novo, applying the 

same standards as the district court. Voinche v. Fed. Bureau of Investigation, 

999 F.2d 962, 963 (5th Cir. 1993) (per curiam). In conducting this review, 

we “construe all facts and inferences in the light most favorable to the 

nonmovant.” Batiste v. Lewis, 976 F.3d 493, 500 (5th Cir. 2020). Summary 

judgment is proper where there are no genuine disputes of material fact and 

the movant is entitled to prevail as a matter of law. Alkhawaldeh v. Dow Chem. 

Co., 851 F.3d 422, 426 (5th Cir. 2017) (citing Fed. R. Civ. P. 56(a)). 

III. Discussion

To establish a claim for copyright infringement, a plaintiff must show 

“(1) ownership of a valid copyright; (2) factual copying; and (3) substantial 

similarity.” Armour v. Knowles, 512 F.3d 147, 152 (5th Cir. 2007) (per 

curiam). At issue here is the element of factual copying, which a plaintiff may 

show with direct or circumstantial evidence. See id. When, as here, a plaintiff 

lacks direct evidence of copying, factual copying may be inferred from

“either a combination of access and probative similarity or, absent proof of 

access, striking similarity.” Batiste, 976 F.3d at 502. The district court held 

that Johnston failed to raise a genuine dispute of material fact as to access or 

striking similarity. We agree. 

A. Access

As stated above, the first way a plaintiff may establish factual copying 

is with “a combination of access and probative similarity.” Id. At the first 

step, the plaintiff must offer “proof that the defendant had access to the 

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copyrighted work prior to creation of the infringing work.” Peel & Co. v. Rug 

Mkt., 238 F.3d 391, 394 (5th Cir. 2001). Next, the plaintiff must show that 

the works, “when compared as a whole, are adequately similar to establish 

appropriation.” Id. at 397.

“To establish access, a plaintiff must prove that the person who 

created the allegedly infringing work had a reasonable opportunity to view [or 

hear] the copyrighted work before creating the infringing work.” Armour, 

512 F.3d at 152–53 (internal quotation marks and citation omitted). A “bare 

possibility” of access is insufficient, as is mere “speculation or conjecture.” 

Peel & Co., 238 F.3d at 394–95. Indeed, to survive summary judgment, “the 

plaintiff must present evidence that is significantly probative of a reasonable 

opportunity for access.” Batiste, 976 F.3d at 503 (internal quotation marks 

and citation omitted). 

Johnston argues the following evidence shows Nickelback had a 

reasonable opportunity to access his work: (1) executives from Roadrunner’s 

parent company, Universal Music, likely attended Snowblind’s Continental 

Club show; (2) Nickelback’s management group likely attended Snowblind’s 

show at the Whisky-a-Go-Go;2 (3) Nickelback and Snowblind were “moving 

in relatively the same circles” when they were searching for record label 

deals; (4) Nickelback routinely used music ideas from third-party bands; and 

(5) Johnston made significant efforts to publicize his music in the early 2000s. 

But inferring access from this evidence would require “leaps of logic” that 

are not supported by the record. See Armour, 512 F.3d at 155. A jury would 

_____________________

2 The only evidence Johnston identifies for the assertion that certain executives 

attended Snowblind’s shows is that they frequently attend shows at the Continental Club 

and the Whisky-a-Go-Go. Johnston has not presented evidence that any of these executives 

actually attended one of Snowblind’s performances. Indeed, the record establishes only 

that Johnston’s friend, an intern at Universal/Motown Records, attended a Snowblind

show with one of his colleagues in marketing.

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have to infer that the executives Johnston named actually attended 

Snowblind’s shows or received one of his demo CDs, and that these 

executives then showed the song to Nickelback. This “chain of hypothetical 

transmittals is insufficient to infer access,” id. at 153 (quotation omitted), 

especially in the face of testimony from Nickelback members and relevant 

executives that they had never heard of Johnston’s song, see Batiste, 976 F.3d 

at 504 (considering defendants’ sworn testimony that they had never heard 

of plaintiff or his music). Because Johnston’s contentions amount to mere 

speculation, he has failed to raise a genuine fact issue as to whether 

Nickelback had access to his work.

B. Striking Similarity 

Without proof of access, Johnston must establish factual copying by 

showing “striking similarity” between Nickelback’s song and his. See id. To 

meet this burden, he must “demonstrate that the alleged similarities are of a 

kind that can only be explained by copying, rather than by coincidence, 

independent creation, or prior common source.” Guzman v. Hacienda Recs.

& Recording Studio, Inc., 808 F.3d 1031, 1039 (5th Cir. 2015) (internal 

quotation marks and citation omitted). The similarities must also “appear in 

a sufficiently unique or complex context . . . which is of particular importance 

with respect to popular music, in which all songs are relatively short and tend 

to build on or repeat a basic theme.” Id. (internal quotation marks and 

citation omitted). Johnston asserts several challenges to the district court’s 

conclusion that he did not raise a material fact issue as to striking similarity. 

None is availing. 

As an initial matter, Johnston contends the district court applied the 

improper legal standard. First, he argues that the court erred by not applying 

the “more discerning ordinary observer test.” But that test appliesin certain 

circumstances under the substantial similarity analysis—not striking 

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similarity. See Hamil Am., Inc. v. GFI, 193 F.3d 92, 101 (2d Cir. 1999) 

(“[T]he ‘more discerning’ ordinary observer standard . . . requires the court 

to eliminate the unprotectible elements from its consideration and to ask 

whether the protectible elements, standing alone, are substantially 

similar.”).3

 The substantial similarity analysis applies only after a plaintiff 

establishes factual copying and is thus irrelevant here. See Batiste, 976 F.3d 

at 506.

Second, Johnston asserts the district court erred by considering all 

versions of the songs rather than the “stripped down” versions. However, 

Johnston provides no support for this argument, citing only to cases that 

apply his argued standard to the substantial similarity analysis. See, e.g., 

Positive Black Talk Inc. v. Cash Money Recs., Inc., 394 F.3d 357, 367 (5th Cir. 

2004) (upholding jury instruction that “correctly indicate[d] that the jury 

should compare the parts of the two songs that are similar in determining 

substantial similarity”), abrogated on other grounds by Reed Elsevier, Inc. v. 

Muchnick, 559 U.S. 154 (2010). The district court did not err by considering 

all versions of the songs in the record. 

Additionally, Johnston contends the works at issue are strikingly 

similar because they have similar hooks and lyrics. But he has not raised a

material fact issue on whether these alleged similarities are so unique that 

they “can only be explained by copying, rather than by coincidence, 

independent creation, or prior common source.” Guzman, 808 F.3d at 1039. 

_____________________

3 Johnston argues that the “more discerning observer” test should apply to the 

striking similarity analysis because “factual copying cannot be sustained on the basis of 

unprotectable elements.” But we have previously held that a plaintiff can show factual 

copying in part by pointing to “any similarities between the two works, even as to 

unprotectable elements.” Batiste, 976 F.3d at 502 (internal quotation marks and citation

omitted). Thus, the “more discerning observer” test is inapplicable to striking similarity. 

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Johnston’s expert first opinesthat the hooks of the songs are strikingly

similar. He states that there are “clear lyrical similarities” between the two 

hooks: “Gonna be a rock star someday” in Johnston’s work, and “Hey, hey, 

I wanna be a rockstar” in Nickelback’s work. Johnston’s expert also

contends that there are musical similarities “between the two hooks.” 

However, even under Johnston’s expert’s analysis, the melodic and 

harmonic similarities between the two hooks are not so great as to preclude 

all explanations but copying. Further, Johnston fails to raise a material fact 

issue on whether these alleged similarities arise in a “unique or complex 

context.” See id. (quotation omitted). As the summary judgment record 

reflects, several other Nickelback songs and other songs in the rock genre 

share the same similarities. See id. at 1040 (affirming finding of no striking 

similarity because the alleged similarities were “either common to the 

Tejano genre or common in other songs”). 

Johnston’s argument that the rest of the songs’ lyrics create striking 

similarity also fails. Johnston’s expert categorizes the lyrics into common 

themes such as “making lots of money,” “connections to famous people,”

and “references to sports.” But these broad categories are mere clichés of 

being a rockstar that are not unique to the rock genre. Singing about being a 

rockstar is not limited to Johnston. Further, organizing the lyrics into these 

categories overstates theirsimilarities. For example, Johnston contends both 

songs lyricize about sports. Well, Johnston’s work includes the phrase

“Might buy the Cowboys and that’s how I’ll spend my Sundays,” but 

Nickelback’s work includes the phrases “And a bathroom I can play baseball 

in” and “It’s like the bottom of the ninth and I’m never gonna win.” These 

lyrics reference different sports in different contexts, and do not approach 

the threshold of striking similarity. No reasonable juror would think that 

Nickelback could have produced its lyric about baseball only by copying 

Johnston’s lyric about football. Indeed, we have previously held that two 

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songs were not strikingly similar despite “nearly identical” opening lyrics. 

Id. Accordingly, Johnston has not raised a fact issue as to striking similarity. 

Put another way, these two songs are simply not sufficiently similar.

In sum, because he has not shown factual copying with either a 

combination of access and probative similarity, or striking similarity, 

Johnston’s copyright infringement claim fails.

IV. Conclusion

For the foregoing reasons, we AFFIRM the district court’s order 

granting summary judgment to the defendants.4

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4 Because summary judgment for the defendants is proper, we do not reach the 

other issues raised on appeal. 

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