12596164.1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

AUSTIN DIVISION

KIRK JOHNSTON,

Plaintiff,

v.

CHAD KROEGER, MICHAEL KROEGER, 

RYAN PEAKE, DANIEL ADAIR, WARNER 

MUSIC GROUP, ATLANTIC RECORDING 

CORP., ROADRUNNER RECORDS, INC., 

WARNER/CHAPPELL MUSIC, INC., AND

LIVE NATION ENTERTAINMENT, INC.,

Defendants.

§

§

§

§

§

§

§

§

§

§

§

§

§

§

NO. 20-CV-00497-RP 

DEFENDANTS CHAD KROEGER, MICHAEL KROEGER, RYAN PEAKE, DANIEL

ADAIR, ROADRUNNER RECORDS, INC., AND WARNER CHAPPELL MUSIC, INC.’S 

MOTION TO DISMISS PLAINTIFF’S COMPLAINT PURSUANT TO FRCP 12(B)(6)

Defendants Chad Kroeger, Michael Kroeger, Ryan Peake, Daniel Adair (collectively, 

“Nickelback”), Roadrunner Records, Inc. (“Roadrunner Records”), and Warner Chappell Music, 

Inc. (erroneously sued as Warner/Chappell Music, Inc.) (collectively, “Defendants”) file this 

Motion to Dismiss for failure to state a claim upon which relief may be granted pursuant to Federal 

Rule of Civil Procedure 12(b)(6). Defendants ask the Court to dismiss, with prejudice, Plaintiff 

Kirk Johnston’s (“Plaintiff’s”) complaint for copyright infringement of Plaintiff’s musical 

composition.

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12596164.1

 

TABLE OF CONTENTS

Page

i

I. INTRODUCTION AND BACKGROUND ....................................................................... 1

II. STANDARD OF REVIEW................................................................................................ 2

III. ARGUMENT AND AUTHORITIES................................................................................. 3

A. As a threshold matter, Plaintiff has not sufficiently pled access. ........................... 4

Alleged meetings with unnamed A&R representatives and presentations to 

labels. .......................................................................................................... 6

Alleged unsolicited CDs. ........................................................................................ 7

Alleged Performances............................................................................................. 7

B. Plaintiff cannot state a copyright claim because, fundamentally, the works at 

issue are not substantially similar to an ordinary observer. .................................... 8

Lyrically, Plaintiff’s Work and Defendants’ Work are not substantially 

similar. ...................................................................................................... 10

Musically, Plaintiff’s Work and Defendants’ Work are not substantially 

similar. ...................................................................................................... 13

IV. CONCLUSION................................................................................................................. 15

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TABLE OF AUTHORITIES

Page(s)

ii

CASES

ABKCO Music, Inc. v. Harrisongs Music, Ltd.,

722 F.2d 988 (2d Cir. 1983).......................................................................................................4

Armour v. Knowles,

512 F.3d 147 (5th Cir. 2007) .............................................................................................4, 7, 9

Arnett v. Jackson,

2017 WL 3493606 (E.D.N.C. Aug. 14, 2017)...........................................................................6

Arnstein v. Porter,

154 F.2d 464 (2d Cir. 1946).................................................................................................9, 13

Ashcroft v. Iqbal,

556 U.S. 662 (2009)...................................................................................................................3

Batiste v. Lewis,

2020 WL 5640589 (5th Cir. Sept. 22, 2020) .................................................................4, 6, 8, 9

Bell Atlantic v. Twombly,

550 U.S. 544 (2007)...............................................................................................................3, 4

Causey v. Sewell Cadillac-Chevrolet, Inc.,

394 F.3d 285 (5th Cir. 2004) .....................................................................................................3

Creations Unlimited, Inc. v. McCain,

112 F.3d 814 (5th Cir. 1997) ...............................................................................................9, 10

Dimmie v. Carey,

88 F. Supp. 2d 142 (S.D.N.Y. 2000)......................................................................................5, 7

Eng’g Dynamic, Inc. v. Structural Software, Inc.,

26 F.3d 1335 (5th Cir. 1994) ...................................................................................................12

Feldman v. Twentieth Century Fox Film Corp.,

723 F. Supp. 2d 357 (D. Mass. 2010)........................................................................................8

Ferguson v. Nat’l Broad. Co., Inc.,

584 F.2d 111 (5th Cir. 1978) .................................................................................................5, 7

Golan v. Holder,

132 S. Ct. 873 (2012).................................................................................................................1

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TABLE OF AUTHORITIES

(continued)

Page(s)

Page iii

Gottwald v. Jones,

2011 WL 4344038 (S.D.N.Y. Sept. 12, 2011).........................................................9, 10, 13, 14

Guzman v. Hacienda Records & Rec. Studio, Inc.,

2014 WL 6982331 (S.D. Tex. Dec. 9, 2014).........................................................................5, 8

Hobbs v. John,

722 F.3d 1089 (7th Cir. 2013) .................................................................................................13

Huffman v. Burnt Puppy Music,

2017 WL 11046666 (W.D. Tex. Feb. 1, 2017)........................................................................11

Jorgensen v. Epic/Sony Records,

351 F.3d 46 (2d Cir. 2003).................................................................................................4, 5, 7

Kepner-Tregoe, Inc. v. Leadership Software, Inc.,

12 F.3d 527 (5th Cir. 1994) .......................................................................................................9

Loomis v. Cornish,

836 F.3d 991 (9th Cir. 2016) .............................................................................................4, 5, 6

Martinez v. McGraw,

2009 WL 2447611 (M.D. Tenn. Aug. 10, 2009)...................................................................4, 5

Nelson v. PRN Prods., Inc.,

873 F.2d 1141 (8th Cir. 1989) .................................................................................................10

Peel & Co., Inc. v. Rug Mkt.,

238 F.3d 391 (5th Cir. 2001) .....................................................................................................9

Pendleton v. Acuff-Rose Publ’ns, Inc.,

605 F. Supp. 477 (M.D. Tenn. 1984).......................................................................................11

Positive Black Talk Inc. v. Cash Money Records, Inc.,

394 F.3d 357 (5th Cir. 2004) .......................................................................................3, 4, 8, 11

Pyatt v. Raymond,

2011 WL 2078531 (S.D.N.Y. May 19, 2011) ...................................................................11, 15

R. Ready Prods., Inc. v. Cantrell,

85 F. Supp. 2d 672 (S.D. Tex. 2000).........................................................................................9

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TABLE OF AUTHORITIES

(continued)

Page(s)

Page iv

Randolph v. Dimension Films,

634 F. Supp. 2d 779 (S.D. Tex. 2009).................................................................................9, 10

Rucker v. Harlequin Enterprises, Ltd.,

2013 WL 707922 (S.D. Tex. Feb. 26, 2013) .......................................................................3, 10

Sony Corp. of Am. v. Univ. City Studios, Inc.,

464 U.S. 417 (1984)...................................................................................................................1

Staggs v. West,

2009 WL 2579665 (D. Md. Aug. 17, 2009) ................................................................10, 11, 15

Steele v. Turner Broad. Sys., Inc.,

646 F. Supp. 2d 185 (D. Mass. 2009)......................................................................................12

Vallery v. Am. Girl, L.L.C.,

697 F. App’x 821 (5th Cir. 2017) ..............................................................................................8

Williams v. Crichton,

84 F.3d 581 (2d Cir. 1996).......................................................................................................12

Worldwide Subsidy Grp., LLC v. Fed’n Int’l de Football Ass’n,

2014 WL 12631652 (C.D. Cal. June 9, 2014).........................................................................11

Zella v. E.W. Scripps Co.,

529 F. Supp. 2d 1124 (C.D. Cal. 2007) ...............................................................................3, 10

STATUTES

17 U.S.C.§ 102...........................................................................................................................2, 12

OTHER AUTHORITIES

Fed. R. Civ. P. 12(b)(6)............................................................................................................2, 3, 8

Fed. R. Evid. 201(b)(2)..................................................................................................................11

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I. INTRODUCTION AND BACKGROUND

1. On a motion to dismiss a music copyright claim, the Court has a duty to compare the works 

at issue from the vantage point of an ordinary observer. If the works do not sound substantially 

similar to a layperson, no copyright infringement claim lies. Likewise, there can be no claim for 

copyright infringement where any conceivable lyrical similarities between two works arise from 

well-tread themes and tropes, which are not protected by copyright. Nor can short phrases and 

titles, which are not copyrightable, give rise to an infringement lawsuit.

2. In assuming the role of an ordinary listener and analyzing the alleged substantial similarity 

of songs on a motion to dismiss, the Court serves a vital gatekeeping function: By disposing of 

meritless claims at the pleading stage, the Court has the opportunity to quash lawsuits that deter 

creativity and innovation. This furthers the Copyright Act’s greater purpose of “promoting” the 

creation and “public availability of literature, music, and the other arts.” Sony Corp. of Am. v. 

Univ. City Studios, Inc., 464 U.S. 417, 432 (1984) (citation omitted). Accord, Golan v. Holder, 

132 S. Ct. 873, 889 (2012).

3. Plaintiff Kirk Johnston’s case is a paradigmatic example of a lawsuit that should be 

dismissed on its face, with prejudice. Plaintiff, a member of an obscure “alternative rock band” 

called Snowblind Revival, alleges that he wrote a musical composition titled Rock Star 

(“Plaintiff’s Work”) in 2001. Complaint ¶¶ 14-15. In 2005, the Canadian rock band Nickelback 

released a song that was coincidentally titled Rockstar (“Defendants’ Work”). Id. ¶ 20. Not 

surprisingly, both works touch upon the commonplace theme of imagining being a rock star. Any 

conceivable similarity ends there. Plaintiff is hardly the first artist to write a song about imagining 

being a rock star; the notion that he can prevent others from doing so is ludicrous.

4. Plaintiff has not alleged that Nickelback (or any person with a connection to Nickelback) 

had a reasonable opportunity to hear Plaintiff’s Work, let alone copy it. He claims to have 

purportedly sent out a handful of demo CDs to unspecified persons at major record labels and 

performed in a few U.S. cities (at unspecified venues). Complaint ¶¶ 16-17. That does not amount 

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to the access legally required to state a claim for copyright infringement. And ironically, while 

Plaintiff’s claim is premised on the notion that Nickelback must have heard his obscure song, he 

nevertheless claims it was not until 2018 that he first heard Defendants’ Work, which he alleges 

“has sold over 4.5 million copies and was one of the top selling songs of the first decade of this 

century.” Id. ¶¶ 22, 29. It was not until December 2019 that Plaintiff first registered a copyright 

in his musical composition. Id. ¶ 15.

5. Critically and fatally, although Plaintiff baldly claims that “substantial portions of the 

tempo, song form, melodic structure, harmonic structures, and lyrical themes [in Defendants’ 

Work] were copied from Johnston’s original work[,]” (Complaint ¶ 23), the two works are neither 

lyrically nor musically similar – let alone substantially similar. The lyrics share only superficial 

similarities in unprotectable themes, which are expressed quite differently in the two songs. On a 

motion to dismiss, where, as here, Plaintiff has alleged infringement of a musical composition, the 

Court may compare a sound recording embodying Plaintiff’s composition with a sound recording 

of Defendants’ Work1 and decide whether an ordinary observer could find the two works 

substantially similar. Here, the Court will be able to determine that the two songs do not sound 

alike to a lay person.

6. Because Plaintiff’s Work and Defendants’ Work are not substantially similar in protectable 

expression, amendment would be futile, and the Court should dismiss Plaintiff’s complaint for 

copyright infringement without leave to amend.

II. STANDARD OF REVIEW

7. To survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), “a complaint must contain 

sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” 

 1 For any given song, there can be both (1) a musical composition – i.e., the notes and lyrics 

(commonly documented on sheet music), and (2) a sound recording – i.e., the recorded 

performance of a composition. Each is separately copyrightable. See 17 U.S.C. § 102. Here, 

Plaintiff has pled that he holds a copyright in a musical composition, which Defendants allegedly 

infringed through the exploitation of the musical composition, sound recording, and audio-visual 

recording of Nickelback’s Rockstar. See Complaint ¶¶ 15, 28.

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Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted). To state a valid 

claim, a plaintiff must provide “more than labels and conclusions, and a formulaic recitation of the 

elements of a cause of action will not do.” Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007). 

The court need not accept as true “a legal conclusion couched as a factual allegation[,]” and 

“[f]actual allegations must be enough to raise a right to relief above the speculative level[.]” 

Twombly, 550 U.S. at 555 (internal citation and quotations omitted).

8. When considering a motion to dismiss, a court may take judicial notice of “documents 

[such as copies of works] which are not physically attached to the complaint but ‘whose contents 

are alleged in [the] complaint and whose authenticity no party questions.’” Zella v. E.W. Scripps 

Co., 529 F. Supp. 2d 1124, 1128-29 (C.D. Cal. 2007) (internal citation omitted). Moreover, 

“[d]ocuments that a defendant attaches to a motion to dismiss are considered part of the pleadings 

if they are referred to in the plaintiff’s complaint and are central to her claim.” Causey v. Sewell 

Cadillac-Chevrolet, Inc., 394 F.3d 285, 288 (5th Cir. 2004). “Works referenced in the pleading 

and critical to the claims are properly considered on a Rule 12(b)(6) motion without converting it 

to one for summary judgment.” Rucker v. Harlequin Enterprises, Ltd., 2013 WL 707922, at *1, 

n.1 (S.D. Tex. Feb. 26, 2013). Here, Defendants are providing a sound recording embodying 

Plaintiffs’ Work (for purposes of this motion only) and a sound recording of Defendants’ Work. 

See Exhibits 1-2. Additionally, a side-by-side comparison of the lyrics is included for the Court’s 

convenience in Appendix A.

III. ARGUMENT AND AUTHORITIES

9. “To establish a claim for copyright infringement, a plaintiff must prove that: (1) he owns a 

valid copyright and (2) the defendant copied constituent elements of the plaintiff’s work that are 

original.” Positive Black Talk Inc. v. Cash Money Records, Inc., 394 F.3d 357, 367 (5th Cir. 2004), 

abrogated on other grounds by Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154 (2010). Actionable

copying, in turn, requires (A) factual copying – which may be inferred from “(1) proof that the 

defendant had access to the copyrighted work prior to creation of the infringing work and 

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(2) probative similarity” – and (B) substantial similarity. Id. at 368. Here, Plaintiff has not and 

cannot sufficiently plead access. Moreover, on their face, Plaintiff’s Work and Defendants’ Work 

are not similar – let alone substantially similar – and thus amendment would be futile. As such, 

the Court should dismiss the complaint, at this pleading stage, with prejudice.

A. As a threshold matter, Plaintiff has not sufficiently pled access.

10. In the copyright context, access means that “the person who created the allegedly infringing 

work had a reasonable opportunity to view the copyrighted work before creating the infringing 

work. Indeed, “[a] bare possibility will not suffice; neither will a finding of access based on 

speculation or conjecture. Reasoning that amounts to nothing more than a tortuous chain of 

hypothetical transmittals is insufficient to infer access.” Armour v. Knowles, 512 F.3d 147, 152-

53 (5th Cir. 2007) (emphasis added) (citation and internal quotation marks omitted). At the 

pleading stage, a plaintiff’s access allegations “must be enough to raise a right to relief above the 

speculative level” to satisfy the requirements of Twombly. Martinez v. McGraw, 2009 WL 

2447611, at *5 (M.D. Tenn. Aug. 10, 2009), quoting Twombly, 550 U.S. at 555.

11. As the Fifth Circuit recently recognized, two common theories of access are a “chain of 

events” linking a plaintiff’s music to the defendants or the “widespread dissemination” of a 

plaintiff’s music. Batiste v. Lewis, 2020 WL 5640589, at *4 (5th Cir. Sept. 22, 2020).2

 Here, 

neither theory is (nor can be) sufficiently alleged.

12. For a chain of events theory to be viable, it must be more than a mere hypothesis. See 

Armour, 512 F.3d at 155 (rejecting access theory that would have required multiple “leaps of 

logic,” including “T–Bone and Beyoncé were in fact good friends”; “T–Bone and Beyoncé 

regularly communicated”; “T–Bone received and listened to the demo tape”; “T–Bone gave the 

tape to Beyoncé”; and “Beyoncé received the tape and had the opportunity to listen to it”) 

 2 While the Fifth Circuit has not expressly adopted either theory, it considered both in Batiste. 

2020 WL 5640589, at *4-6. Other Circuits analyze these two avenues of access. See, e.g., 

Loomis v. Cornish, 836 F.3d 991, 995-98 (9th Cir. 2016)); ABKCO Music, Inc. v. Harrisongs 

Music, Ltd., 722 F.2d 988, 998 (2d Cir. 1983); Jorgensen v. Epic/Sony Records, 351 F.3d 46, 51-

56 (2d Cir. 2003).

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(emphasis in original); Martinez, 2009 WL 2447611, at *5-6 (granting motion to dismiss copyright 

infringement claim where plaintiff merely pled a “tenuous string of facts” by which defendants 

allegedly had access to plaintiff’s song).

13. One particular type of “chain of events” theory that courts consistently have rejected is 

“bare corporate receipt” – i.e., a plaintiff’s claim that he sent a copy of his work to a corporate 

defendant purportedly connected to the allegedly infringing work, with nothing more. “Bare 

corporate receipt of [plaintiff’s] work, without any allegation of a nexus between the recipients 

and the alleged infringers, is insufficient to raise a triable issue of access.” Jorgensen v. Epic/Sony 

Records, 351 F.3d 46, 53 (2d Cir. 2003). This is particularly true of unsolicited mailings, like the 

ones alleged by Plaintiff here. See Ferguson v. Nat’l Broad. Co., Inc., 584 F.2d 111, 112-13 (5th 

Cir. 1978) (finding no access where plaintiff merely sent her composition to four individuals (Guy 

Lombardo, Dinah Shore, Jerri Green, and Don Cherry) and two companies (Broadcast Music 

Incorporated and Mills Publishing Company)); Jorgensen, 351 F.3d at 52 (where plaintiff sent out 

a multitude of unsolicited tapes of his song, Second Circuit held plaintiff’s “mass-mailing 

allegation was [] properly rejected by the District Court as legally insufficient proof of access”); 

Dimmie v. Carey, 88 F. Supp. 2d 142, 146 (S.D.N.Y. 2000) (rejecting access theory based on 

plaintiff mailing an unsolicited tape of her song to record company: “plaintiff’s ‘best case’ scenario 

of (alleged) unsolicited mailing does not establish ‘access’”). See also Loomis v. Cornish, 836 

F.3d 991, 995-96 (9th Cir. 2016) (collecting bare corporate receipt cases and finding no access: “it 

is not reasonably possible that the paths of the infringer and the infringed work crossed.”) (citation 

and internal quotations omitted).

14. Likewise, courts have consistently rejected access based on purported widespread 

dissemination where a plaintiff’s work only reached a limited audience, as is the case here. See 

Guzman v. Hacienda Records & Rec. Studio, Inc., 2014 WL 6982331, at *2, 5-6 (S.D. Tex. Dec. 9, 

2014), aff’d 808 F.3d 1031 (5th Cir. 2015) (finding neither widespread dissemination nor access 

where plaintiff’s song was performed for many years “at dance halls, concerts, and weddings in 

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Corpus Christi and surrounding towns” and “did not achieve popularity outside of the Tejano 

music scene”); Batiste, 2020 WL 5640589, at *5 (finding no access under either a widespread 

dissemination or chain of events theory where plaintiff’s record “show[ed] meager sales in only a 

handful of local stores[,]” and defendants’ performance near a store where plaintiff’s records were 

sold created only a “bare possibility of access”); Loomis, 836 F.3d at 997-98 (plaintiff failed to 

establish access or widespread dissemination despite plaintiff’s song having won awards and 

plaintiff’s prominence in the Santa Barbara, California music scene). See also Arnett v. Jackson, 

2017 WL 3493606, at *3 (E.D.N.C. Aug. 14, 2017) (granting motion to dismiss plaintiff’s claims, 

with prejudice, when plaintiff failed to allege that subject work was a commercial success and 

made no estimate of the amount of copies sold).

15. Applying these principles, Plaintiff has failed to plead that Nickelback had a reasonable 

opportunity to hear a sound recording or performance of Plaintiff’s Work before creating 

Defendants’ Work under either a chain of events or widespread dissemination theory:

Alleged meetings with unnamed A&R representatives and presentations to labels.

16. Plaintiff claims that “Snowblind Revival met with the A&R (Artists and Repertoire) 

representatives of nearly every major recording label in the United States.” Complaint ¶ 16. 

Snowblind Revival allegedly “presented their music to a broad variety of labels, including 

Universal Music Group, Columbia Records, Maverick Records, Atlantic Records, Arista Records, 

Sony Music Group and Warner Music Group.” Id. Plaintiff claims that unnamed “executives” 

gave positive feedback on Plaintiff’s Work. Id.

17. These allegations fail to plead a chain of events sufficient to allege access. As an initial 

matter, Plaintiff does not allege that he met with or presented to any of the members of Nickelback, 

who created Defendants’ Work, nor any of their representatives. And he does not claim that he 

met with A&R representatives of Roadrunner Records, the label that Plaintiff acknowledges 

distributes Defendants’ Work.3 Complaint ¶ 9. Nor does he specify any A&R representatives or 

 3 Plaintiff voluntarily dismissed Warner Music Group and Atlantic Recording Corporation, 

which did not distribute Defendants’ Work. See Dkt. No. 9.

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record label personnel by name. And Plaintiff does not – because he cannot – posit any scenario 

by which the aforementioned alleged meetings and presentations led Defendants to gain access to 

Plaintiffs’ Work. Indeed, unlike the alleged chains of events in other cases, Plaintiff has not even 

tried to posit the steps by which his work could have reached Nickelback (or any of the other 

Defendants). Compare Armour, 512 F.3d at 155 (rejecting T–Bone/Beyoncé hypothesis).

Alleged unsolicited CDs.

18. Plaintiff also asserts that Snowblind Revival created a CD containing a sound recording of 

Plaintiff’s Work (as well as three of the band’s other songs) and mailed out 15 copies to record 

labels including Warner Music Group, Atlantic Records, Sony, Universal and Columbia. 

Complaint ¶ 17.

19. This allegation of purported access also falls hopelessly short. Again, Plaintiff does not 

allege that he sent an unsolicited CD to Nickelback or to Roadrunner Records, which distributed 

Defendants’ Work. Complaint ¶¶ 9, 17. Nor does he specify any person to whom he sent the 

unsolicited CD, instead merely listing the names of some of the most famous record labels in the 

world. Id. ¶ 17. (He concedes he only sent out 15 copies. Id.) Nor does he plead that a 

representative of any such record label ever acknowledged receiving the CD. Again, Plaintiff has 

failed to sufficiently allege a chain of events connecting the unsolicited CDs to Defendants and his 

bare corporate receipt theory fails. See Ferguson, 584 F.2d at 112-13; Jorgensen, 351 F.3d at 52-

53; Dimmie 88 F. Supp. 2d at 146. In fact, Plaintiff’s theory is even more tenuous than those that 

were rejected in Jorgensen and Dimmie because Plaintiff mailed fewer unsolicited recordings, and 

he did not even mail them to the relevant corporate entity, Roadrunner Records.

Alleged Performances.

20. Finally, Plaintiff vaguely alleges that in the years 2000 and 2001 his band “performed in 

venues around the country, including but not limited to live shows in Los Angeles, CA, Austin, 

TX, Lexington, KY, Nashville, TN and New York City.” Complaint ¶ 17.

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21. Yet again, Plaintiff’s access allegations are glaringly legally deficient: He does not specify 

the number of shows or the size of their audiences, and he names only one specific venue (the 

Continental Ballroom in New York City). Complaint ¶ 17. Nor does he plead that there was broad 

publicity for the shows, or even that Plaintiff’s Work was performed at them. Id. And critically, 

he does not allege that the members of Nickelback attended Snowblind Revival’s shows in the 

aforementioned cities, nor any facts to suggest they conceivably could have – to the contrary, he 

alleges that they are residents of Canada. Id. ¶¶ 3-6. Consequently, Plaintiff has not, and cannot, 

allege access via widespread dissemination of Plaintiff’s Work. See Guzman, 2014 WL 6982331, 

at *5-6, Batiste 2020 WL 5640589, at *5.

22. Plaintiff’s bare allegations of access not only are deficient, but they also reveal that it is 

inconceivable that Nickelback could reasonably have had the opportunity to hear Plaintiff’s Work. 

Therefore, the Court should dismiss Plaintiff’s complaint for copyright infringement with 

prejudice. See Vallery v. Am. Girl, L.L.C., 697 F. App’x 821, 825 (5th Cir. 2017) (district court 

properly dismissed and denied amendment where plaintiff failed to plead access and could not 

allege “striking similarities”); Feldman v. Twentieth Century Fox Film Corp., 723 F. Supp. 2d 357, 

366 (D. Mass. 2010) (dismissing copyright infringement claim pursuant to Rule 12(b)(6) because 

plaintiff “failed to allege facts sufficient to demonstrate reasonable opportunity of access”).

B. Plaintiff cannot state a copyright claim because, fundamentally, the works at 

issue are not substantially similar to an ordinary observer.

23. Plaintiff could never state a claim for copyright infringement because Plaintiff’s Work and 

Defendants’ Work are not substantially similar. This is an independently sufficient ground for 

dismissal, and amendment would be futile.

24. Even assuming arguendo that Plaintiff could sufficiently allege access (which he cannot), 

to maintain a claim for copyright infringement he must also establish substantial similarity between 

the works. Positive Black Talk, 394 F.3d at 367-68. Without access, Plaintiff must clear the higher 

bar of showing that Plaintiff’s Work and Defendants’ Work are “strikingly similar” – i.e., the 

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similarities between the two works could only be explained by actual copying. Batiste, 2020 WL 

5640589, at *4, 6; Armour, 512 F.3d at 152, n.3.

25. In the Fifth Circuit, “[t]o determine whether an instance of copying is legally actionable, a 

side-by-side comparison must be made between the original and the copy to determine whether a 

layman would view the two works as ‘substantially similar.’” Creations Unlimited, Inc. v. 

McCain, 112 F.3d 814, 816 (5th Cir. 1997). This analysis is also known as the “ordinary observer” 

test: “Two works are substantially similar where ‘the ordinary observer, unless he set out to detect 

the disparities, would be disposed to overlook them, and regard [the] aesthetic appeal [of the two 

works] as the same.’” R. Ready Prods., Inc. v. Cantrell, 85 F. Supp. 2d 672, 683 (S.D. Tex. 2000) 

(quoting Arica Inst., Inc. v. Palmer, 970 F.2d 1067, 1072 (2d Cir. 1992)). “Under the ordinary 

observer or audience test used in making this factual determination, a layman must detect piracy 

without any aid or suggestion or critical analysis by others. The reaction of the public to the matter 

should be spontaneous and immediate.” Peel & Co., Inc. v. Rug Mkt., 238 F.3d 391, 398 (5th Cir. 

2001) (citation and internal quotations omitted).

26. In music cases, courts applying the “ordinary observer” test at the pleading stage analyze 

whether “defendant took from plaintiffs works so much of what is pleasing to the ears of lay 

listeners, who comprise the audience for whom such ... music is composed, that defendant 

wrongfully appropriated something which belongs to the plaintiff.” Gottwald v. Jones, 2011 WL 

4344038, at *4 (S.D.N.Y. Sept. 12, 2011) (citation and internal quotation marks omitted); see also 

Arnstein v. Porter, 154 F.2d 464, 472-73 (2d Cir. 1946). “When a work contains both protectable 

and unprotectable elements, the court must apply the ‘“more discerning” ordinary observer’ test” 

and filter out the unprotectable material from its comparison. R. Ready Prods., 85 F. Supp. 2d at 

683; see Kepner-Tregoe, Inc. v. Leadership Software, Inc., 12 F.3d 527, 534-35 (5th Cir. 1994).

27. The Court may determine the lack of similarity between two works on a motion to dismiss; 

in doing so it performs a critical gatekeeping function. See Randolph v. Dimension Films, 634 F. 

Supp. 2d 779, 787-88 (S.D. Tex. 2009) (“Complaints alleging copyright infringement ... can be 

Case 1:20-cv-00497-RP Document 17 Filed 10/22/20 Page 14 of 25
12596164.1 10

decided as a matter of law.”). The Court may take judicial notice of the works at issue (Zella, 529 

F. Supp. 2d at 1128-29) and perform the side-by-side comparison required in the Fifth Circuit 

under Creations Unlimited, 112 F.3d at 816. See Randolph, 634 F. Supp. 2d at 787-88; Rucker, 

2013 WL 707922, at *4-10 (comparing works at issue and granting motion to dismiss, with 

prejudice). See also, e.g., Nelson v. PRN Prods., Inc., 873 F.2d 1141, 1143 (8th Cir. 1989) 

(upholding dismissal with prejudice of claim alleging copyright infringement of plaintiff’s song 

lyrics by the artist Prince; noting that “[t]he District Court had before it ... complete copies of both 

[plaintiff’s] song and Prince’s and was therefore in proper position to apply the substantial 

similarity test”); Gottwald v. Jones, 2011 WL 4344038, at *4-5 (S.D.N.Y. Sept. 12, 2011) 

(applying “ordinary lay hearer” analysis and finding no lyrical or musical similarity and dismissing 

counterclaim with prejudice); Staggs v. West, 2009 WL 2579665 at *3 (D. Md. Aug. 17, 2009) 

(comparing music and lyrics of songs at issue and granting motion to dismiss).

28. From the perspective of a layman, i.e., an ordinary listener, Plaintiff’s Work and 

Defendants’ Work are neither lyrically nor musically similar – let alone substantially similar. (And 

under no circumstances are they strikingly similar – the threshold when there is no viable theory 

of access.) Since “[o]nly the works themselves are probative in a substantial similarity analysis[,]” 

there is no amendment that could cure this fundamental defect. Randolph, 634 F. Supp. 2d at 788.

Lyrically, Plaintiff’s Work and Defendants’ Work are not substantially similar.

29. There is no lyrical similarity between Plaintiff’s Work and Defendants’ Work that could 

give rise to a copyright infringement claim. As noted above, Johnston pled only that the two works 

share lyrical themes, i.e., he did not plead any specific similarities between the lyrics. Complaint 

¶¶ 23-25. Examining the lyrics themselves, the only even conceivable commonalities are 

unprotectable elements, which must be filtered out under the “more discerning ordinary observer” 

test.

30. The sole lyrical similarity between the two songs is the short phrase “be a rock star,” which 

Johnston obviously cannot own. “Courts have consistently held that common words and clichéd 

Case 1:20-cv-00497-RP Document 17 Filed 10/22/20 Page 15 of 25
12596164.1 11

language are not subject to copyright protection.” Pendleton v. Acuff-Rose Publ’ns, Inc., 605 F. 

Supp. 477, 486 (M.D. Tenn. 1984); see also Pyatt v. Raymond, 2011 WL 2078531, at *8 (S.D.N.Y. 

May 19, 2011) (granting motion to dismiss where only lyrical similarity was use of the 

unprotectable, common phrase “caught up” in the title and throughout both songs); Staggs, 2009 

WL 2579665, at *3 (“common words or phrases – such as ‘good life’ ... simply are not 

copyrightable”); see also Huffman v. Burnt Puppy Music, 2017 WL 11046666, at *4 (W.D. Tex. 

Feb. 1, 2017) (Pitman, J.) (“the alleged fact that both Plaintiff and some defendants used the same 

common words in the titles of their works does not allow the plausible inference that independent 

creation was unlikely.”).4

31. Tellingly, the crux of Johnston’s infringement claim is that Plaintiff’s Work and 

Defendants’ Work share “lyrical themes.” Complaint ¶¶ 23-25. But, as a matter of law, the theme

of imagining being a rock star is a commonplace idea, which is not protectable by copyright. See 

Pyatt, 2011 WL 2078531 at *7 (“While both songs (like millions of others) share the theme of 

relationships between men and women, this theme is an idea that is not copyrightable.”). Indeed 

there are myriad other songs that pre-date Plaintiff’s Work about imagining being a rock star.5

32. Thus, it is not surprising that both songs include lyrics about being rich, going to parties, 

riding on a tour bus, jet planes, and hanging out with celebrities. These elements are scenes a 

 4 Nor could the fact that Plaintiff’s Work is titled Rock Star and Defendants’ Work is titled 

Rockstar give rise to a copyright infringement claim. See, e.g., Positive Black Talk, 394 F.3d at 

374, n. 14 (“[Plaintiff] also concedes that song titles are not copyrightable and therefore could 

not be considered by the jury in the substantial similarity determination.”).

5 See, e.g., So you want to be a rock ’n’ roll star (1966) by The Byrds; Rock ’n’ roll singer

(1975) by AC/DC; Rock n’ Roll band (1976) by Boston; Wanna be a rock ’n’ roll star (1977) by 

Eddie Money; Rock ’n’ roll star (1984) by REO Speedwagon; Rock ’n’ roll to the rescue (1986) 

by The Beach Boys; Rock star (2000) by Everclear. See Exhibits 3-9 (printouts from the 

Copyright Public Catalog of the United States Copyright Office website). In ruling on a motion 

to dismiss, a court may take judicial notice of facts “not subject to reasonable dispute” because 

they “can be accurately and readily determined from sources whose accuracy cannot reasonably 

be questioned.” Fed. R. Evid. 201(b)(2). Courts routinely take judicial notice of printouts from 

the U.S. Copyright Office website. See, e.g., Worldwide Subsidy Grp., LLC v. Fed’n Int’l de 

Football Ass’n, 2014 WL 12631652, at *2 (C.D. Cal. June 9, 2014) (reasoning, “[c]ourts can 

take judicial notice of documents available on government websites”; taking judicial notice of 

printouts from the Copyright Office website, and collecting cases).

Case 1:20-cv-00497-RP Document 17 Filed 10/22/20 Page 16 of 25
12596164.1 12

faire, which are not protected by copyright, and thus must be excluded from comparison under the 

“more discerning ordinary observer” analysis. 17 U.S.C. § 102(b); Steele v. Turner Broad. Sys., 

Inc., 646 F. Supp. 2d 185, 192 (D. Mass. 2009) (“[Plaintiff’s] Song’s references to Fenway Park 

and Yawkey Way are classic scene a faire; they are stock scenes that flow from the idea of baseball. 

... [Plaintiff] does not enjoy a monopoly over the use of those images simply because he references 

them in a copyrighted song.”). See also, e.g., Eng’g Dynamic, Inc. v. Structural Software, Inc., 26 

F.3d 1335, 1344 (5th Cir. 1994); Williams v. Crichton, 84 F.3d 581, 587-88 (2d Cir. 1996).

33. Therefore, it is legally inconsequential that Plaintiff’s Work includes the lyric “Gonna ride 

the tour bus” and the Defendants’ Work includes the line, “I want a new tour bus full of old 

guitars”. “Tour buses” are a common form of transportation for “rock stars,” and therefore, 

constitute a scene a faire of a song about imagining being a rock star – they must be excluded from 

the substantial similarity analysis under the “more discerning ordinary observer” test. Nor are 

these references to “tour buses” particularly similar – Plaintiff’s Work merely describes riding a 

tour bus and makes no mention of guitars, while Defendants’ Work contemplates ownership of a 

tour bus and old guitars.

34. Likewise, hanging out with celebrities is an unprotectable scene a faire, which must be 

excluded from the comparison of the two works. Moreover, this unprotectable idea is expressed 

differently in the two songs: Plaintiff’s Work includes the line, “Gonna hang out at Hollywood 

parties with Matthew McConaughey,” whereas Defendants’ Work has the decidedly distinct lyric, 

“And we’ll hang out in the coolest bars in the VIP with the movie stars.”

35. And the songs diverge further in their discussion of jet planes – yet another trope of being 

a rock star: Plaintiff’s Work includes the lyric “Gonna ride the tour bus, Because I don’t like jet 

planes” (emphasis added), whereas the would-be rock star in Defendants’ Work says, “I’ll need a 

credit card that’s got no limit, And a big black jet with a bathroom in it.” Again, the reference to 

a jet plane is not protectable – nor is its expression remotely similar in the two works.

Case 1:20-cv-00497-RP Document 17 Filed 10/22/20 Page 17 of 25
12596164.1 13

36. Upon closer analysis, the lyrical themes of the two works are quite different: Plaintiff’s 

Work contains a hopeful wish list of the things the singer would do if he were a rock star, including 

being friends with Robert Plant and Jimmy Page and buying the Dallas Cowboys. Defendants’ 

Work, by contrast, is more cynical and highlights the darker side of rock-n-roll stardom, such as 

eating disorders, drug use, objectifying women, and squandering one’s fortune. See Hobbs v. John, 

722 F.3d 1089, 1095 (7th Cir. 2013) (affirming grant of motion to dismiss copyright claim 

regarding two love songs where “allegedly similar elements are expressed differently in [the songs 

at issue]” and “the remaining similar elements are rudimentary, common-place, standard, or 

unavoidable in popular love songs”).

37. Under the “more discerning ordinary observer” test, the lyrics of the two works contain no 

protectable similarities. Plaintiff’s claim must be dismissed.

Musically, Plaintiff’s Work and Defendants’ Work are not substantially similar.

38. Critically, although Plaintiff generally claims that “substantial portions of the tempo, song 

form, melodic structure, harmonic structures, and lyrical themes [in Defendants’ Work] were 

copied from Johnston’s original work[,]” (Complaint ¶ 23), the Court need not analyze the 

musicological elements of the works at issue to decide Defendants’ motion to dismiss. Rather, the 

Court must merely assume the role of an ordinary listener to determine whether the two songs 

sound substantially similar – in other words, whether “[Defendants] took from [Plaintiff’s Work] 

so much of what is pleasing to the ears of lay listeners”. Gottwald, 2011 WL 4344038, at *4. This 

framework dates back to the seminal Arnstein v. Porter case, in which the Second Circuit reasoned, 

“The proper criterion ... is not an analytic or other comparison of the respective musical 

compositions as they appear on paper or in the judgment of trained musicians. The plaintiff’s 

legally protected interest is not, as such, his reputation as a musician but his interest in the potential 

financial returns from his compositions which derive from the lay public’s approbation of his 

efforts.” 154 F.2d at 472-73. Thus, the Court needs no special expertise to analyze substantial 

similarity between the musical works.

Case 1:20-cv-00497-RP Document 17 Filed 10/22/20 Page 18 of 25
12596164.1 14

39. Here, while Plaintiff’s claim pertains exclusively to his musical composition (i.e., the 

musical notes and lyrics), and not to the sound recording embodying the musical composition 

(hereinafter “Plaintiff’s Recording”), for purposes of this motion, the Court may compare the 

works at issue by simply listening to Plaintiff’s Recording and the sound recording of Defendants’ 

Work.

40. The ordinary listener will conclude that Plaintiff’s Work (as embodied in Plaintiff’s

Recording) and Defendants’ Work sound nothing alike. Plaintiff’s Recording has a steady, driving 

guitar beat, whereas Defendants’ Work does not and is obviously slower. The two songs are not 

in the same key; Plaintiff’s Work is in a major key, whereas Defendants’ Work is in both major 

and minor keys. Further, the styles of the two works are different. Plaintiff 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.” Complaint ¶ 14. And most importantly, the melodies of Plaintiff’s Work 

and Defendants’ Work sound nothing alike.

41. Courts have granted motions to dismiss music copyright infringement claims in analogous 

circumstances. For example, in Gottwald v. Jones, where counterclaimants alleged that the hit 

song Tik Tok infringed their obscure song My Slushy, the Southern District of New York compared 

the sound recordings embodying the musical compositions at issue and dismissed the copyright 

counterclaim. 2011 WL 4344038, at *6. The court found, “The music of the two works is not at 

all similar. ... [The allegedly infringed work] is in the major key and has an unmistakably brighter 

feel and tone, colored by its use of background chords performed on acoustic guitar. In stark 

contrast, [the allegedly infringing work] has a much darker feel and tone (reflecting use of the 

minor), more related to dance or ‘dance-pop’ music. The two ‘melodies’ ... sound nothing alike.” 

Id. at *5 (emphasis added). The court thus concluded, “Since no average lay observer would 

recognize [‘Tik Tok’] as having been appropriated from [‘My Slushy’], the My Slushy Parties’ 

counterclaim must be dismissed.” Id. (citation and internal quotation marks omitted).

Case 1:20-cv-00497-RP Document 17 Filed 10/22/20 Page 19 of 25
12596164.1 15

42. Likewise, in Pyatt v. Raymond, the court applied the ordinary observer test and concluded, 

“the music on the two recordings [] is entirely dissimilar.” 2011 WL 2078531 at *9. The court 

observed that plaintiff’s song “takes strong influence from Jamaican dancehall and hip hop” 

whereas defendants’ song “is R&B with unmistakable Motown influences.” Id. The court also 

noted that “[defendants’] song has a fast, steady beat when compared to [defendants’] song, which 

has a slower, more languid beat. And the musical motifs are extremely dissimilar.” Id. See also 

Staggs, 2009 WL 2579665, at *3 (“in evaluating the melodies of the two songs, an ordinary listener 

– the Court in this case – would quickly determine that the melodies of the songs are not similar. 

In fact, the Court was unable to hear any portions of the songs that contained similar melodies.”).

43. Applying the same ordinary listener analysis here, Plaintiff’s Work (as embodied in 

Plaintiff’s Recording) and Defendants’ Work do not sound substantially similar to an ordinary 

listener and, as such, Plaintiff’s claim must be dismissed.

IV. CONCLUSION

For these reasons, Plaintiff has failed to state a claim upon which relief may be granted 

against Defendants. No amendment could cure the fatal flaws in Plaintiff’s claim. Therefore, 

Defendants respectfully request that the Court grant this motion, dismiss Plaintiff’s copyright 

infringement claim against Defendants, in its entirety, with prejudice, and grant all further relief 

to which Defendants are justly entitled.

Case 1:20-cv-00497-RP Document 17 Filed 10/22/20 Page 20 of 25
12596164.1 16

Dated: October 22, 2020 Respectfully Submitted,

MITCHELL SILBERBERG & KNUPP LLP

By: /s/David A. Steinberg___________________

David A. Steinberg

Emily F. Evitt

2049 Century Park East, 18th Floor

Los Angeles, CA 90067

Tel. 310.312.2000

Email: das@msk.com; efe@msk.com

Counsel for Defendants

BAKER DONELSON BEARMAN,

CALDWELL & BERKOWITZ, P.C.

By: /s/ Kenneth E. McKay___________________

Kenneth E. McKay

Texas State Bar No. 13690835

1301 McKinney St.

Houston, Texas 77010

Tel. 713.286.7179 Fax: 713.583.4603

Email: kmckay@bakerdonelson.com

Counsel for Defendants

Case 1:20-cv-00497-RP Document 17 Filed 10/22/20 Page 21 of 25
12596164.1 17

APPENDIX A

Rock Star by Snowblind Revival Rockstar by Nickelback

Gonna be a rock star someday

Gonna ride the tour bus 

Because I don’t like jet planes

Gonna make lots of money

Live life in the fast lane

Gonna be a rock star someday

Gonna be a rock star someday

Gonna have lots of friends like Robert Plant 

and Jimmy Page

Gonna make my family proud

Gonna sing a good song, gonna sing it loud

Gonna be a rock star someday

(scat singing and guitar solo)

Gonna be a rock star someday

Gonna hang out at Hollywood parties with 

Matthew McConaughey

Might buy the Cowboys

And that’s how I’ll spend my Sundays

Gonna be a rock star someday

Gonna be a rock star someday

Gonna ride the tour bus 

Because I don’t like jet planes

Gonna make lots of money

Live life in the fast lane

Gonna be a rock star someday

Here we go, (scat singing)

Gonna be a rock star someday

I'm through with standin' in lines to clubs I'll 

never get in

It's like the bottom of the ninth and I'm never 

gonna win

This life hasn't turned out

Quite the way I want it to be

(Tell me what you want)

I want a brand new house on an episode of 

Cribs

And a bathroom I can play baseball in

And a king size tub

Big enough for ten plus me

(Yeah, so what you need?)

I’ll need a credit card that's got no limit

And a big black jet with a bathroom in it

Gonna join the mile high club

At thirty-seven thousand feet

(Been there, done that)

I want a new tour bus full of old guitars

My own star on Hollywood Boulevard

Somewhere between Cher

And James Dean is fine for me

(So how you gonna do it?)

I'm gonna trade this life

For fortune and fame

I'd even cut my hair

And change my name

'Cause we all just wanna be big rockstars

And live in hilltop houses, drivin' fifteen cars

The girls come easy and the drugs come 

cheap

We'll all stay skinny 'cause we just won't eat

And we'll hang out in the coolest bars

In the VIP with the movie stars

Every good gold digger's gonna wind up there

Case 1:20-cv-00497-RP Document 17 Filed 10/22/20 Page 22 of 25
12596164.1 18

Every Playboy bunny with her bleach blond 

hair

And well, hey I wanna be a rockstar

Hey hey I wanna be a rockstar

I wanna be great like Elvis without the tassels

Hire eight body guards that love to beat up 

assholes

Sign a couple autographs

So I can eat my meals for free

(I'll have the quesadilla, ha, ha)

I'm gonna dress my ass with the latest fashion

Get a front door key to the Playboy mansion

Gonna date a centerfold that loves

To blow my money for me

(So how you gonna do it?)

I'm gonna trade this life

For fortune and fame

I'd even cut my hair

And change my name

'Cause we all just wanna be big rockstars

And live in hilltop houses, drivin' fifteen cars

The girls come easy and the drugs come 

cheap

We'll all stay skinny 'cause we just won't eat

And we'll hang out in the coolest bars

In the VIP with the movie stars

Every good gold digger's gonna wind up there

Every Playboy bunny with her bleach blond 

hair

And we'll hide out in the private rooms

With the latest dictionary of today's who's 

who

They'll get you anything with that evil smile

Everybody's got a drug dealer on speed dial

Well, hey I wanna be a rockstar

Case 1:20-cv-00497-RP Document 17 Filed 10/22/20 Page 23 of 25
12596164.1 19

I'm gonna sing those songs that offend the 

censors

Gonna pop my pills from a Pez dispenser

Get washed-up singers writin' all my songs

Lipsync 'em every night so I don't get 'em 

wrong

Well, we all just wanna be big rockstars

And live in hilltop houses, drivin' fifteen cars

The girls come easy and the drugs come 

cheap

We'll all stay skinny 'cause we just won't eat

And we'll hang out in the coolest bars

In the VIP with the movie stars

Every good gold digger's gonna wind up there

Every Playboy bunny with her bleach blond 

hair

And we'll hide out in the private rooms

With the latest dictionary of today's who's 

who

They'll get you anything with that evil smile

Everybody's got a drug dealer on speed dial

Well, hey hey I wanna be a rockstar

Hey hey I wanna be a rockstar

Case 1:20-cv-00497-RP Document 17 Filed 10/22/20 Page 24 of 25
12596164.1 20

CERTIFICATE OF SERVICE

I hereby certify that on October 22, 2020, the foregoing document was served via the 

Court’s CM/ECF system and FedEx in accordance with the Federal Rules of Civil Procedure on 

the following counsel:

COUNSEL FOR PLAINTIFF KIRK 

JOHNSTON

LAW OFFICE OF SESHA KALAPATAPU

Sesha Kalapatapu

2929 Allen Parkway, Suite 200

Houston, TX 77019

Telephone: 832.398.1771

Fax: 713.574.4719

Email: sesha@sktexaslaw.com

JONES WALKER LLP

Jeffrey J. Phillips

881 Main Street, Suite 2900

Houston, TX 77002

Telephone: 713.437.1864

Fax: 713.437.1810

Email: jphillips@joneswalker.com

COUNSEL FOR LIVE NATION 

ENTERTAINMENT, INC.

FOLEY & LARDNER LLP

Geoffrey H. Bracken

Michaela G. Bissett

1000 Louisiana, Suite 2000

Houston, Texas 77002-2099

Telephone: (713) 276-5500

Fax: (713) 276-5555

E-mails: gbracken@foley.com; 

mbissett@foley.com

/s/David A. Steinberg

David A. Steinberg

Case 1:20-cv-00497-RP Document 17 Filed 10/22/20 Page 25 of 25