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 

ANSWER TO PLAINTIFF’S ORIGINAL COMPLAINT

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, “Defendants”), by and through 

their undersigned counsel, hereby set forth their Answer and Affirmative Defenses to the 

Original Complaint (the “Complaint”) filed against them by Plaintiff Kirk Johnston (“Plaintiff”) 

in the above-styled civil action and respond as follows:

NATURE OF THE CASE1

1. Defendants admit that Plaintiff purports to bring a claim for copyright 

infringement under 17 U.S.C. § 101, et seq. Defendants specifically deny that they are liable to 

Plaintiff under the Copyright Act (17 U.S.C. § 101, et seq.), or under any other theory of 

 1 Defendants reproduce the headings of the Complaint for the Court’s convenience and without 

admitting any allegations that may be contained therein. To the extent that any of the headings 

of the Complaint contain factual allegations, Defendants deny each and every allegation 

contained therein.

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liability. Except as expressly admitted, alleged or denied, Defendants deny each and every 

allegation contained in Paragraph 1 of the Complaint.

PARTIES

2. Defendants lack knowledge or information sufficient to form a belief as to the 

truth of the allegations in Paragraph 2 of the Complaint, and on that basis deny each and every 

allegation contained therein.

3. Defendants admit that Chad Kroeger is a resident of Canada, is a member of the 

band known as “Nickelback,” is credited as a writer of the musical composition Rockstar, is a 

performer on the sound recording of Rockstar on Nickelback’s Album All the Right Reasons, and 

has publicly performed Rockstar and authorized its reproduction, distribution and public 

performance. Defendants specifically deny that Rockstar infringes Plaintiff’s copyright, or any 

other of Plaintiff’s alleged rights whatsoever. Except as expressly admitted, alleged or denied, 

Defendants deny each and every allegation contained in Paragraph 3 of the Complaint.

4. Defendants admit that Ryan Peake is a resident of Canada, is a member of the 

band known as “Nickelback,” is credited as a writer of the musical composition Rockstar, is a 

performer on the sound recording of Rockstar on Nickelback’s Album All the Right Reasons, and 

has publicly performed Rockstar and authorized its reproduction, distribution and public 

performance. Defendants specifically deny that Rockstar infringes Plaintiff’s copyright, or any 

other of Plaintiff’s alleged rights whatsoever. Except as expressly admitted, alleged or denied, 

Defendants deny each and every allegation contained in Paragraph 4 of the Complaint.

5. Defendants admit that Michael Kroeger is a member of the band known as 

“Nickelback,” is credited as a writer of the musical composition Rockstar, is a performer on the 

sound recording of Rockstar on Nickelback’s Album All the Right Reasons, and has publicly 

performed Rockstar and authorized its reproduction, distribution and public performance. 

Defendants specifically deny that Rockstar infringes Plaintiff’s copyright, or any other of 

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Plaintiff’s alleged rights whatsoever. Except as expressly admitted, alleged or denied, 

Defendants deny each and every allegation contained in Paragraph 5 of the Complaint.

6. Defendants admit that Daniel Adair is a resident of Canada, is a member of the 

band known as “Nickelback,” is credited as a writer of the musical composition Rockstar, is a 

performer on the sound recording of Rockstar on Nickelback’s Album All the Right Reasons, and 

has publicly performed Rockstar and authorized its reproduction, distribution and public 

performance. Defendants specifically deny that Rockstar infringes Plaintiff’s copyright, or any 

other of Plaintiff’s alleged rights whatsoever. Except as expressly admitted, alleged or denied, 

Defendants deny each and every allegation contained in Paragraph 6 of the Complaint.

7. Defendants deny each and every allegation contained in Paragraph 7 of the 

Complaint. 

8. Defendants admit that Atlantic Recording Corporation (“Atlantic”) is a Delaware 

Corporation, with a principal place of business in New York City, New York, and is a record 

company engaged in the business of developing artists and creating, manufacturing, selling, and 

distributing sound recordings. Except as expressly admitted, alleged or denied, Defendants deny 

each and every allegation contained in Paragraph 8 of the Complaint. 

9. Defendants admit that Roadrunner is a New York corporation, with a principal 

place of business in New York City, New York. Defendants specifically deny that Rockstar

infringes Plaintiff’s copyright, or any other of Plaintiff’s alleged rights whatsoever. Except as 

expressly admitted, alleged or denied, Defendants deny each and every allegation contained in 

Paragraph 9 of the Complaint.

10. Defendants admit and allege that Warner Chappell is a Delaware corporation, 

with a principal place of business in Los Angeles, California, and is a music publishing company 

that is involved in licensing musical compositions and acquiring rights to musical compositions. 

Except as expressly admitted, alleged or denied, Defendants deny each and every allegation 

contained in Paragraph 10 of the Complaint.

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11. Defendants lack knowledge or information sufficient to form a belief as to the 

truth of the allegations in Paragraph 11 of the Complaint, and on that basis deny each and every 

allegation contained therein.

JURISDICTION AND VENUE

12. Defendants admit that Plaintiff purports to base subject matter jurisdiction in this 

action on 28 U.S.C. §1331 and §1338(a). Defendants specifically deny that they are liable to 

Plaintiff under the Copyright Act, or under any other theory of liability. Except as expressly 

admitted, alleged or denied, Defendants deny each and every allegation contained in Paragraph 

12 of the Complaint.

13. Defendants admit that Plaintiff purports to assert venue under 28 U.S.C. §

1400(a), and purports to claim personal jurisdiction under the Texas long arm statute, Tex. Civ. 

Prac. & Rem. Code §17.042. Defendants specifically deny that Rockstar infringes Plaintiff’s 

copyright, or any other of Plaintiff’s alleged rights whatsoever, and further specifically deny that 

they have engaged in any infringing activity whatsoever. Except as expressly admitted, alleged 

or denied, Defendants deny each and every allegation contained in Paragraph 13 of the 

Complaint.

OWNERSHIP OF ROCK STAR

14. Defendants lack knowledge or information sufficient to form a belief as to the 

truth of the allegations in Paragraph 14 of the Complaint, and on that basis deny each and every 

allegation contained therein.

15. Defendants lack knowledge or information sufficient to form a belief as to the 

truth of the allegations in Paragraph 15 of the Complaint, and on that basis deny each and every 

allegation contained therein.

16. Defendants lack knowledge or information sufficient to form a belief as to the 

truth of the allegations in Paragraph 16 of the Complaint, and on that basis deny each and every 

allegation contained therein.

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17. Defendants lack knowledge or information sufficient to form a belief as to the 

truth of the allegations in Paragraph 17 of the Complaint, and on that basis deny each and every 

allegation contained therein.

18. Defendants deny each and every allegation contained in Paragraph 18 of the 

Complaint.

19. Defendants lack knowledge or information sufficient to form a belief as to the 

truth of the allegations in Paragraph 19 of the Complaint, and on that basis deny each and every 

allegation contained therein.

DEFENDANTS’ INFRINGEMENT OF ROCK STAR

20. Defendants admit and allege that, on October 4, 2005, Nickelback released the 

album All the Right Reasons, which included the sound recording entitled Rockstar. Defendants 

further admit and allege that each of Chad Kroeger, Michael Kroeger, Ryan Peake and Daniel 

Adair is credited as a writer, producer, and performer of Rockstar. Except as expressly admitted, 

alleged or denied, Defendants deny each and every allegation contained in Paragraph 20 of the 

Complaint.

21. Defendants admit that All the Right Reasons has sold millions of copies 

worldwide. Except as expressly admitted, alleged, or denied, Defendants deny each and every 

allegation contained in Paragraph 21 of the Complaint.

22. Defendants admit that the sound recording of Rockstar released as a single has 

sold millions of copies worldwide, and further admit that Nickelback has performed Rockstar

hundreds of times live in concert. Except as expressly admitted, alleged or denied, Defendants 

deny each and every allegation contained in Paragraph 22 of the Complaint.

23. Defendants deny each and every allegation contained in Paragraph 23 of the 

Complaint, and specifically deny that they copied anything from Plaintiff’s composition Rock 

Star, or infringed Plaintiff’s alleged rights in any way whatsoever. 

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24. Defendants deny each and every allegation contained in Paragraph 24 of the 

Complaint.

25. Defendants deny each and every allegation contained in Paragraph 25 of the 

Complaint, and specifically deny that they copied anything from Plaintiff’s composition Rock 

Star, or infringed Plaintiff’s alleged rights in any way whatsoever. 

26. Defendants admit that they never obtained permission from Plaintiff to use his 

composition Rock Star; Defendants deny that any such permission was necessary. Defendants 

specifically deny that they copied anything from Plaintiff’s composition Rock Star, or infringed 

Plaintiff’s alleged rights in any way whatsoever. Except as expressly admitted, alleged or 

denied, Defendants deny each and every allegation contained in Paragraph 26 of the Complaint.

27. Defendants admit that they never obtained permission from Plaintiff to use his 

composition Rock Star; Defendants deny that any such permission was necessary. Defendants 

specifically deny that they copied anything from Plaintiff’s composition Rock Star, or infringed 

Plaintiff’s alleged rights in any way whatsoever. Except as expressly admitted, alleged or 

denied, Defendants deny each and every allegation contained in Paragraph 27 of the Complaint.

28. Defendants admit that certain of them have licensed, reproduced, copied, 

distributed, sold, broadcast, publicly performed and/or authorized the reproduction, distribution 

and public performance of Rockstar, and further admit that certain of them continue to exploit 

the album All the Right Reasons and the digital sound recording of Rockstar. Defendants 

specifically deny that Rockstar infringes Plaintiff’s copyright, or any other of Plaintiff’s alleged 

rights whatsoever. Except as expressly admitted, alleged or denied, Defendants deny each and 

every allegation contained in Paragraph 28 of the Complaint.

DISCOVERY RULE

29. Defendants lack information sufficient to form a belief as to the truth of the 

allegations in the first sentence of Paragraph 29 of the Complaint, and on that basis deny each 

and every allegation contained therein. Defendants deny each and every remaining allegation 

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contained in Paragraph 29 of the Complaint, and specifically deny that they copied anything 

from Plaintiff’s composition Rock Star, or infringed Plaintiff’s alleged rights in any way 

whatsoever. 

30. Defendants deny each and every allegation contained in Paragraph 30 of the 

Complaint, and specifically deny that they infringed Plaintiff’s alleged rights in any way, and 

that Plaintiff is entitled to any relief whatsoever.

INFRINGEMENT OUTSIDE OF THE UNITED STATES

31. Defendants deny each and every allegation contained in Paragraph 31 of the 

Complaint, and specifically deny that they stole, misappropriated or copied anything from 

Plaintiff’s composition Rock Star, or infringed Plaintiff’s alleged rights in any way whatsoever.

32. Defendants lack information sufficient to form a belief as to the truth of the 

allegations in the first sentence of Paragraph 32 of the Complaint, and on that basis deny each 

and every allegation contained therein. Defendants deny each and every remaining allegation 

contained in Paragraph 32 of the Complaint, and specifically deny that they infringed Plaintiff’s 

alleged rights in any way whatsoever.

33. Defendants admit that Roadrunner, Warner Chappell, and Atlantic maintain their 

principal places of business in the United States. Except as expressly admitted, alleged or 

denied, Defendants deny each and every allegation contained in Paragraph 33 of the Complaint, 

and specifically deny that they infringed Plaintiff’s alleged rights in any way whatsoever.

FIRST CAUSE OF ACTION

Copyright Infringement, 17 U.S.C. §101 et. seq.

34. Defendants reallege and incorporate herein by reference their responses to 

Paragraphs 1 through 33 as though set forth in full. 

35. Defendants deny each and every allegation contained in Paragraph 35 of the 

Complaint, and specifically deny that they infringed Plaintiff’s alleged rights in any way.

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36. Defendants deny each and every allegation contained in Paragraph 36 of the 

Complaint, and specifically deny that they infringed Plaintiff’s alleged rights in any way.

37. Defendants deny each and every allegation contained in Paragraph 37 of the 

Complaint, and specifically deny that they infringed Plaintiff’s alleged rights in any way.

38. Defendants deny each and every allegation contained in Paragraph 38 of the 

Complaint, and specifically deny that they infringed Plaintiff’s alleged rights in any way.

39. Defendants deny each and every allegation contained in Paragraph 39 of the 

Complaint. Defendants specifically deny: (i) that they infringed Plaintiff’s alleged rights in any 

way; (ii) that they have committed any wrongful act or act that has caused, is causing, or will 

cause any injury or damage to Plaintiff whatsoever; and (iii) that Plaintiff is entitled to any relief 

of whatever nature.

40. Defendants deny each and every allegation contained in Paragraph 40 of the 

Complaint. Defendants specifically deny: (i) that they infringed Plaintiff’s alleged rights in any 

way; (ii) that they have committed any wrongful act or act that has caused, is causing, or will 

cause any injury or damage to Plaintiff whatsoever; (iii) that Plaintiff is entitled to general 

damages or special damages; and (iv) that Plaintiff is entitled to any relief of whatever nature.

41. Defendants deny each and every allegation contained in Paragraph 41 of the 

Complaint. Defendants specifically deny: (i) that they infringed Plaintiff’s alleged rights in any 

way; (ii) that they have committed any wrongful act or act that has caused, is causing, or will 

cause any injury or damage to Plaintiff whatsoever; (iii) that Plaintiff is entitled to disgorgement 

of Defendants’ profits; and (iv) that Plaintiff is entitled to any relief of whatever nature.

42. Defendants deny each and every allegation contained in Paragraph 42 of the 

Complaint. Defendants specifically deny: (i) that they infringed Plaintiff’s alleged rights in any 

way; (ii) that they have committed any wrongful act or act that has caused, is causing, or will 

cause any injury or damage to Plaintiff whatsoever; (iii) that Plaintiff is entitled to attorneys’ 

fees; and (iv) that Plaintiff is entitled to any relief of whatever nature.

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DEMAND FOR JURY TRIAL

43. Paragraph 43 contains no allegations to which a response is required. To the 

extent a response is required, Defendants admit that Plaintiff requests a trial by jury.

AFFIRMATIVE DEFENSES

As separate and distinct affirmative defenses to Plaintiff’s alleged claim for relief, 

Defendants allege the following, without admission that such allegations are affirmative defenses 

on which Defendants bear the burden of proof.

FIRST AFFIRMATIVE DEFENSE

(Failure to State a Claim)

1. The Complaint fails to state facts sufficient to constitute a claim for relief.

SECOND AFFIRMATIVE DEFENSE

(Prior Art; Public Domain)

2. Plaintiff’s claim is barred, in whole or in part, because the elements of his musical 

composition Rock Star exist in prior art or are in the public domain, and thus cannot give rise to a 

copyright claim.

THIRD AFFIRMATIVE DEFENSE

(No Originality)

3. All or some of the elements of Plaintiff’s work Rock Star that Plaintiff claims are 

infringed by Defendants’ work Rockstar lack originality and are thus not protectable by 

copyright.

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FOURTH AFFIRMATIVE DEFENSE

(Independent Creation)

4. Defendants’ work Rockstar was independently created without reference to 

Plaintiff’s work Rock Star.

FIFTH AFFIRMATIVE DEFENSE

(De Minimis)

5. Plaintiff’s claim fails because, to the extent any protectable expression contained 

in Plaintiff’s work was used by Defendants, such use was de minimis.

SIXTH AFFIRMATIVE DEFENSE

(Fair Use)

6. Plaintiff’s claim fails because, to the extent Plaintiff’s composition Rock Star 

contains any protectable expression that was used by Defendants, such use is protected, and not 

actionable, under the doctrine of fair use.

SEVENTH AFFIRMATIVE DEFENSE

(Estoppel)

7. To the extent any of the acts alleged in the Complaint occurred, Plaintiff is 

estopped by his own conduct from maintaining his claim, and thus the recovery sought by 

Plaintiff is barred in whole or in part.

EIGHTH AFFIRMATIVE DEFENSE

(Waiver)

8. To the extent any of the acts alleged in the Complaint occurred, Plaintiff has, 

through his own actions, conduct, and failure to act, waived any right to relief.

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NINTH AFFIRMATIVE DEFENSE

(Unclean Hands)

9. To the extent any of the acts alleged in the Complaint occurred, Plaintiff’s claim 

is barred as a result of Plaintiff’s unclean hands.

TENTH AFFIRMATIVE DEFENSE

(Authorization, License, Acquiescence, Ratification, Consent)

10. To the extent any of the acts alleged in the Complaint occurred, those acts were 

authorized, licensed, acquiesced in, ratified, or consented to by Plaintiff, by implication or by 

conduct.

ELEVENTH AFFIRMATIVE DEFENSE

(Failure to Mitigate)

11. Plaintiff’s claim is barred, in whole or in part, by his failure to mitigate.

TWELFTH AFFIRMATIVE DEFENSE

(Good Faith)

12. To the extent Defendants engaged in any act alleged by Plaintiff, they did so 

innocently and in good faith.

THIRTEENTH AFFIRMATIVE DEFENSE

(Statute of Limitations)

13. Plaintiff’s claim is barred, in whole or in part, by the applicable statute of 

limitations.

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FOURTEENTH AFFIRMATIVE DEFENSE

(No Valid Copyright) 

14. Plaintiff’s claim is barred, in whole or in part, because Plaintiff does not own a

copyright in Plaintiff’s work Rock Star, or Plaintiff’s purported copyright is invalid and/or 

unenforceable. 

RESERVATION

15. Defendants reserve the right to assert additional affirmative defenses.

PRAYER FOR RELIEF

WHEREFORE, Defendants demand: that Plaintiff takes nothing by his Complaint, and 

that his First Cause of Action be dismissed with prejudice; that Defendants recover their

attorneys’ fees and costs incurred herein from Plaintiff pursuant to 17 U.S.C. § 505; and such 

other relief as the Court deems just and proper. 

Dated: September 9, 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 Defendants

BAKER DONELSON BEARMAN,

CALDWELL & BERKOWITZ, P.C.

By: /s/ Kenneth E. McKay___________________ 

Kenneth E. McKay

Texas State Bar No. 13690835

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1301 McKinney St.

Houston, Texas 77010 

Telephone: 713.286.7179 

Fax: 713.583.4603 

Email: kmckay@bakerdonelson.com

Counsel for Defendants

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CERTIFICATE OF SERVICE

I hereby certify that on September 9, 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 counsel: 

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

___________________________ 

David A. Steinberg 

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