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.

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NO. 20-CV-00497-RP 

OBJECTIONS TO THE AUGUST 11, 2021 REPORT & RECOMMENDATION 

DENYING DEFENDANTS’ MOTION TO DISMISS

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

perform as the musical group p/k/a “Nickelback”), Roadrunner Records, Inc. (“Roadrunner”), 

and Warner Chappell Music, Inc. (erroneously sued as Warner/Chappell Music, Inc.) (“Warner 

Chappell,” and, collectively with Nickelback and Roadrunner, the “Nickelback Defendants”)

hereby respectfully object to the Report and Recommendation of United States Magistrate Judge 

Susan Hightower (Dkt. 27, the “Recommendation” or “Rec.”) as follows: 

I. INTRODUCTION AND BACKGROUND

Plaintiff Kirk Johnston (“Plaintiff or “Johnston”), 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 (Dkt. 1) ¶¶ 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. However, the two songs sound nothing alike. Nonetheless, 15 years after the release 

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of Defendants’ Work, Johnston sued the Nickelback Defendants and three other defendants for 

copyright infringement.1

On October 22, 2020, the Nickelback Defendants filed a Motion to Dismiss, which was 

ultimately referred to Magistrate Judge Hightower. Dkt. 17. In support of their Motion, the 

Nickelback Defendants submitted sound recordings of Plaintiff’s Work and Defendants’ Work 

(Dkt. 17-1, 17-2), and asked the Court to assume the role of an ordinary listener and compare 

them. (The Nickelback Defendants will be providing additional courtesy copies of these sound 

recordings in support of the Objections.) On August 11, 2021, the Magistrate issued her 

decision, which recommended that the Nickelback Defendants’ Motion to Dismiss be denied. 

Dkt. 27 (Rec.). 

“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 

(2) probative similarity”; and (b) substantial similarity. Id. at 368.

In recommending that the Nickelback Defendants’ Motion to Dismiss be denied, the 

Magistrate concluded that Johnston sufficiently (1) alleged access and (2) pled substantial 

similarity. Rec. at 5-7. The Nickelback Defendants object to both of these findings. As to 

access, the Recommendation failed to sufficiently scrutinize Johnston’s actual allegations, which 

amount to nothing more than bare corporate receipt. With regard to substantial similarity, the 

Nickelback Defendants object that the Magistrate did not properly apply the “ordinary observer” 

test. For these reasons, and because Johnston’s Complaint is fatally deficient, the Objections 

should be sustained and the Motion to Dismiss should be granted. 

1

 Johnston thereafter voluntarily dismissed Warner Music Group and Atlantic Recording 

Corporation, which did not distribute Defendants’ Work. See Dkt. 9. 

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II. LEGAL STANDARD

Under 28 U.S.C. § 636(b) and Fed. R. Civ. P. 72(b), a party may serve and file objections 

to a magistrate judge’s proposed findings and recommendations within 14 days, and thereby 

secure a de novo review by the district court. A district court has “wide discretion to consider 

and reconsider the magistrate judge’s recommendation,” Saqui v. Pride Cent. Am., LLC, 595 

F.3d 206, 211 (5th Cir. 2010), and the court may accept, reject or modify the report, in whole or 

in part. 28 U.S.C. § 636(b)(1)(C); Fed. R. Civ. P. 72(b).

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.” 

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted). 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 Corp. v. Twombly, 550 U.S. 544, 555 (2007).

III. OBJECTIONS

A. Objection 1: The Recommendation failed to adequately scrutinize 

Johnston’s speculative access allegations, which are based on bare corporate 

receipt.

In concluding that Johnston had adequately alleged access, the Magistrate reasoned:

Johnston alleges that Snowblind Revival presented the Copyrighted 

Work to executives from Universal Music Group at in-person 

meetings and provided them discs containing the song as part of a 

press kit. Dkt. 1 ¶¶ 16-17. At the time, Nickelback’s label, 

Roadrunner Records, was a wholly owned subsidiary of Universal 

Music Group. Dkt. 21 at 10 n.1. These facts, taken as true, could 

have given the Nickelback Defendants a reasonable opportunity to 

hear Johnston’s Copyrighted Work.

Rec. at 5 (first citing Dkt. 1 ¶¶ 16-17 and then citing Dkt. 21 at 10 n.1). Presented in this 

summary fashion, the Recommendation obscures the fact that Johnston’s allegations contain 

none of the detail necessary to make his access theory viable. “[A] bare possibility [of access] 

will not suffice; neither will a finding of access based on speculation or conjecture.” Armour v. 

Knowles, 512 F.3d 147, 153 (5th Cir. 2007) (quotations omitted). Looking at the actual 

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paragraphs of the Complaint cited in the Recommendation, it is clear that Johnston alleges 

nothing more than a speculative chain of events or “bare corporate receipt,” which has 

consistently been rejected as insufficient for access.

2

 See, e.g., 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 v. 

Epic/Sony Records, 351 F.3d 46, 52 (2d Cir. 2003) (where plaintiff sent out a multitude of 

unsolicited tapes of his song, the Second Circuit held plaintiff’s “mass-mailing allegation was [] 

properly rejected by the District Court as legally insufficient proof of access”); Loomis v. 

Cornish, 836 F.3d at 995-96 (collecting bare corporate receipt cases and finding no access).

The Recommendation cites to paragraph 16 of the Complaint, where Johnston alleges

that “Snowblind Revival 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.” Dkt. 1 ¶ 16. However, he provides no details of those 

meetings, 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. Id. The allegations in 

paragraph 17 of the Complaint, on which the Recommendation is also based, fare no better: 

Johnston claims that he sent out 15 demo CDs to “the various record labels” including “WMG ... 

Atlantic Records, Sony, Universal and Columbia” – again, without identifying any specific 

individuals at any of these record labels. Id. ¶ 17. Further, Johnston has failed to allege any 

means by which Plaintiff’s Work could have ended up in the hands of the individual members of 

2

 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, 976 F.3d 

493, 503-04 (5th Cir., 2020). “Bare corporate receipt” is a specific type of chain of events theory

that does not satisfy a plaintiff’s burden to allege access. See, e.g., Loomis v. Cornish, 836 F.3d 

991, 995-96 (9th Cir. 2016). The Recommendation made no mention of any purported 

“widespread dissemination”– i.e., that Johnston’s band performed live shows in five U.S. cities 

(Dkt. 1 ¶ 17) – presumably because those allegations are wholly inadequate to sufficiently 

establish access.

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Nickelback who composed Defendants’ Work.3

 None of these allegations describe a chain of 

events that links Plaintiff’s Work to the creation of Defendants’ Work.

Moreover, the lynchpin of the Recommendation’s finding on access – that “[a]t the time, 

Nickelback’s label, Roadrunner Records, was a wholly owned subsidiary of Universal Music 

Group” – is based on a footnote in Johnston’s Opposition to the Motion to Dismiss, which in turn

cites to an online news article from 2006. Rec. at 5, citing Dkt. 21 at 10, n.1. Relying on 

purported evidence outside of the pleadings in this manner is impermissible on a motion to 

dismiss. See, e.g., Lone Star Fund V (U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th 

Cir. 2010) (“The court’s review is limited to the complaint, any documents attached to the 

complaint, and any documents attached to the motion to dismiss that are central to the claim and 

referenced by the complaint.”).4

Johnston’s allegations of access thus fail as a matter of law, and his failure to plead 

access is grounds for granting the Nickelback Defendants’ Motion to Dismiss. See, e.g.,

Martinez v. McGraw, 2009 WL 2447611, at *5 (M.D. Tenn. Aug. 10, 2009) (granting defendants’ 

motion to dismiss, without leave to amend, where plaintiff’s allegations of access were based on 

the “tenuous string of facts” that defendant country star Tim McGraw purportedly had access to 

plaintiff’s song because McGraw recorded music in the same recording studio and used some of 

the same songwriters as another singer, Terri Clark, who released a song with a title similar to 

another one of plaintiff’s songs); Arnett v. Jackson, 2017 WL 3493606, at *4 (E.D.N.C. Aug. 14, 

2017) (granting defendants’ motion to dismiss on access, without leave to amend, in case 

 3 In response to the Motion to Dismiss, Johnston could have amended his Complaint to add 

additional, more detailed access allegations. The fact that he chose not to is telling.

4 Even if the claim in the footnote and article were considered, it would not establish access – it 

would not even establish bare corporate receipt by Defendants Roadrunner or Warner Chappell. 

The article simply mentions Roadrunner having an unidentified “partnership deal with Universal 

Music” – which is different from being a “wholly owned subsidiary.” Nor does the article 

contain any details of such a “partnership,” nor any other basis to conclude that it would have 

provided an opportunity for anyone affiliated with Roadrunner, or any of the other Nickelback 

Defendants, to hear Johnston’s song.

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involving two songs titled Remember Me; finding that plaintiff’s access theory impermissibly 

relied on a “tortuous chain of hypothetical transmittals.”). 

B. Objection 2: The Recommendation erred by not properly applying the

“ordinary observer” test.

In concluding that Johnston had sufficiently alleged substantial similarity between 

Plaintiff’s Work and Defendants’ Work, the Recommendation states: “Having listened to the 

works at issue, Dkts. 17-1 and 17-2, the Court finds that it is possible for a reasonable juror to 

determine that the works share protectable elements.” Rec. at 7. The Recommendation, 

however, does not specify any elements that a jury could find to be protectable similarities 

between the works at issue.

In determining whether two works are substantially similar, courts in the Fifth Circuit 

apply an “ordinary observer test” whereby “[t]wo 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). In music cases, the Judge assumes the role of an ordinary listener, 

and determines whether the songs sound substantially similar to the lay listener – in other words, 

whether “[Defendants] took from [Plaintiff’s Work] so much of what is pleasing to the ears of 

lay listeners[.]” Gottwald v. Jones, 2011 WL 4344038 at *4 (S.D.N.Y. Sept. 12, 2011).5

5

 “When a work contains both protectable and unprotectable elements, however, 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). 

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After concluding “it is possible for a reasonable juror to determine that the works share 

protectable elements[,]” the Recommendation goes on to state, “[w]hether Johnston will be able 

to produce evidence that these similarities rise to the level of ‘substantial’ or ‘striking’ in view of 

the Nickelback Defendants’ level of access is yet to be determined.” Rec. at 7 (emphasis added). 

But considering evidence is not part of applying the ordinary observer test; the Court need only 

listen to and compare the two works at issue from a layman’s perspective. That is precisely why 

“[w]hen the original work and the allegedly infringing copy are ... available to the court for sideby-side comparison, substantial similarity can be decided on a Rule 12(b)(6) motion to dismiss.” 

Randolph v. Dimension Films, 634 F. Supp. 2d 779, 787 (S.D. Tex. 2009); see also, Rucker v. 

Harlequin Enters., Ltd., 2013 WL 707922, at *4-10 (S.D. Tex. Feb. 26, 2013) (comparing works 

at issue and granting motion to dismiss, with prejudice); 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”).

Respectfully, the Nickelback Defendants disagree with the Recommendation’s finding on 

substantial similarity. When this Court conducts its de novo review of the works at issue by 

listening to Plaintiff’s Work and Defendants’ Work,6 the Nickelback Defendants submit that the 

Court will find that the two works are not substantially similar – either lyrically or musically. 

Neither the Complaint, nor Johnston’s Opposition to the Motion to Dismiss, nor the 

Recommendation has identified any alleged protectable lyrical similarities. Johnston failed to 

6

 Any given song usually consists of 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 musical composition. Each is separately copyrightable. See 17 U.S.C. § 102. 

Here, Plaintiff alleges that Defendants’ exploitation of the musical composition, sound recording, 

and audio-visual recording of Nickelback’s Rockstar infringes Plaintiff’s copyright in his 

musical composition Rock Star. See Dkt. 1 ¶¶ 15, 28. On a motion to dismiss, where Plaintiff 

has alleged infringement of a musical composition, the Court may compare a sound recording 

embodying Plaintiff’s Work with a sound recording of Defendants’ Work. See Gottwald, 2011 

WL 4344038 at *1-2, *6. 

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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[.]” Dkt. 1 ¶ 23. Titles are not protectable 

by copyright, and their similarity cannot give rise to an infringement claim. See 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.”); 

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.”). Nor does copyright protect the commonplace lyrical theme of imagining being a 

rock star. See Pyatt v. Raymond, 2011 WL 2078531, at *7 (S.D.N.Y. May 19, 2011) (granting 

motion to dismiss: “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.”). 

As for the music, it is evident to an ordinary observer that the sound recording of 

Plaintiff’s Work 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. Even 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.” Dkt. 1 ¶ 14. And most 

importantly, the melodies of Plaintiff’s Work and Defendants’ Work sound nothing alike. 

IV. CONCLUSION

For the foregoing reasons, as well as those set forth in the Motion to Dismiss, the

Nickelback Defendants respectfully request that the Court reject the Report and 

Recommendation’s findings on access and substantial similarity and dismiss Johnston’s claims 

against the Nickelback Defendants under Rule 12(b)(6), without leave to amend. 

Case 1:20-cv-00497-RP Document 28 Filed 08/25/21 Page 8 of 10
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Dated: August 25, 2021 Respectfully Submitted,

MITCHELL SILBERBERG & KNUPP LLP

By: _____________________________________ 

David A. Steinberg (pro hac vice) 

Emily F. Evitt (pro hac vice) 

2049 Century Park East, 18th Floor 

Los Angeles, CA 90067 

Telephone: 310.312.2000

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

Counsel for the Nickelback Defendants 

BAKER DONELSON BEARMAN,

CALDWELL & BERKOWITZ, P.C.

By: _____________________________________ 

Kenneth E. McKay

Texas State Bar No. 13690835 

1301 McKinney St. 

Houston, Texas 77010 

Telephone: 713.286.7179

Fax: 713.583.4603 

Email: kmckay@bakerdonelson.com

Counsel for the Nickelback Defendants

/s/Kenneth E. McKay

Case 1:20-cv-00497-RP Document 28 Filed 08/25/21 Page 9 of 10
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CERTIFICATE OF SERVICE

I hereby certify that on August 25, 2021, the foregoing document was served via the 

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

following: 

MAGISTRATE JUDGE SUSAN HIGHTOWER 

COUNSEL FOR PLAINTIFF KIRK JOHNSTON

Sesha Kalapatapu

2929 Allen Parkway, Suite 200 

Houston, TX 77019 

Telephone: 832.398.1771

Fax: 713.574.4719 

Email: sesha@sktexaslaw.com

Jeffrey J. Phillips 

811 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

__________________________________________

David A. Steinberg

U.S. Magistrate Judge Susan Hightower

USDC – Western Texas

501 West 5th Street, Suite 6100

Austin, TX 78701

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