4845-7519-1759.1 

UNITED STATES DISTRICT COURT 

WESTERN DISTRICT OF TEXAS 

AUSTIN DIVISION 

KIRK JOHNSTON, § 

 § 

 PLAINTIFF § NO. 1:20-CV-00497-RP 

 § 

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. § 

DEFENDANT LIVE NATION ENTERTAINMENT, INC.’S MOTION TO DISMISS

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

Defendant, Live Nation Entertainment, Inc., (“Live Nation”) files 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). Live Nation asks the Court to dismiss with prejudice Plaintiff Kirk Johnston’s 

(“Plaintiff’s”) original complaint for alleged copyright infringement of Plaintiff’s musical 

composition. 

I. INTRODUCTION AND BACKGROUND 

1. Live Nation is an event promoter, including concerts. Plaintiff has articulated no 

facts to justifying Live Nation’s status as a culpable party in this lawsuit. Moreover, there is no 

allegation that Live Nation copied any work to which Plaintiff claims an interest or in any way 

specifically violated the Copyright Act. In fact, the only oblique reference made about Live Nation 

in Plaintiff’s complaint at Paragraph 11 is that “on information and belief, Live Nation has 

promoted and continues to promote live concerts for WMG1 and the Nickelback Defendants, 

 

1

 Presumably, WMG stands for Warner Music Group, which the Plaintiff voluntarily dismissed or August 11, 2020 

[Dkt. 11]. 

Case 1:20-cv-00497-RP Document 18 Filed 10/22/20 Page 1 of 4
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including performance of the infringing Rockstar song.” This unsupported assertion does not 

provide “sufficient factual matter, accepted as true, to state a claim for relief that is plausible on 

its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 

2. 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. As a result, 

Live Nation, pursuant to Federal Rule of Civil Procedure 10(c) adopts and incorporates by 

reference herein, 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) [Dkt. 17, filed October 22, 2020] and pleads and asserts the 

same against Plaintiff herein. 

II. CONCLUSION 

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

Live Nation. No amendment could cure the fatal flaws in Plaintiff’s claim. Therefore, Live Nation 

respectfully requests that the Court grant this motion, dismiss Plaintiff’s copyright infringement 

claim against Live Nation, in its entirety, with prejudice, and grant all such other and further relief, 

either at law or in equity, general or special, to which Live Nation is justly entitled. 

Case 1:20-cv-00497-RP Document 18 Filed 10/22/20 Page 2 of 4
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Dated: October 22, 2020 Respectfully Submitted, 

FOLEY & LARDNER LLP 

By: /s/ Geoffrey H. Bracken 

Geoffrey H. Bracken 

State Bar No. 02809750 

gbracken@foley.com 

Michaela G. Bissett 

State Bar No. 24106189 

mbissett@foley.com 

1000 Louisiana, Suite 2000 

Houston, Texas 77002-2099 

Telephone: (713) 276-5500 

 Facsimile: (713) 276-5555 

ATTORNEYS FOR DEFENDANT, LIVE 

NATION ENTERTAINMENT, INC. 

 

Case 1:20-cv-00497-RP Document 18 Filed 10/22/20 Page 3 of 4
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CERTIFICATE OF SERVICE 

I certify that on October 22, 2020 a true and correct copy of the foregoing document was 

served upon the following counsel of record in accordance with the Federal Rules of Civil 

Procedure. 

Sesha Kalapatapu 

Law Office of Sesha Kalapatapu 

2929 Allen Parkway, Suite 200 

Houston, TX 77019 

sesha@sktexaslaw.com

Jeffrey J. Phillips 

Jones Walker LLP 

881 Main Street, Suite 2900 

Houston, TX 77002 

jphillips@joneswalker.com

ATTORNEYS FOR PLAINTIFF, 

KIRK JOHNSON 

David A. Steinberg 

Emily F. Evitt 

2409 Century Park East, 18th Floor 

Los Angles, CA 90067 

das@msk.com

efe@msk.com

Ken McKay 

Baker Donelson Bearman Caldwell & Berkowitz, P.C. 

1301 McKinney St. 

Houston, Texas 77010 

kmckay@bakerdonelson.com

ATTORNEYS FOR DEFENDANTS, 

CHAD KROEGER, MICHAEL KROEGER, 

RYAN PEAKE, DANIEL ADAIR, 

ROADRUNNER RECORDS, INC., 

AND WARNER CHAPPELL MUSIC, INC. 

/s/ Michaela G. Bissett 

 Michaela G. Bissett

Case 1:20-cv-00497-RP Document 18 Filed 10/22/20 Page 4 of 4