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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

AUSTIN DIVISION

KIRK JOHNSTON,

Plaintiff

v.

CHAD KROEGER, MICHAEL 

KROEGER, RYAN PEAKE, DANIEL 

ADAIR, ROADRUNNER RECORDS, 

INC., WARNER/CHAPPELL MUSIC, 

INC., and LIVE NATION 

ENTERTAINMENT, INC.,

Defendants

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 Case No. 1:20-cv-00497-RP

 

 

 

REPORT AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

TO: THE HONORABLE ROBERT PITMAN

UNITED STATES DISTRICT JUDGE

Before the Court are two Motions to Dismiss Plaintiff’s Complaint Pursuant to Federal Rule 

of Civil Procedure 12(b)(6), filed October 22, 2020 by Defendants Chad Kroeger, Michael 

Kroeger, Ryan Peake, Daniel Adair, Roadrunner Records, Inc., and Warner Chappell Music, Inc.

(Dkt. 17) and Defendant Live Nation Entertainment, Inc. (Dkt. 18); Plaintiff’s Response in 

Opposition to All Defendants’ Rule 12 Motions to Dismiss, filed December 3, 2020 (Dkt. 21); and 

the Defendants’ reply briefs, both filed December 17, 2020 (Dkts. 23 and 26). On April 8, 2021, 

the District Court referred the motions to the undersigned Magistrate Judge for Report and 

Recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B), Federal Rule of Civil Procedure 72, and 

Rule 1(d) of Appendix C of the Local Rules of the United States District Court for the Western 

District of Texas.

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I. Background

Plaintiff Kirk Johnston brings this action for copyright infringement against Defendants Chad 

Kroeger, Michael Kroeger, Ryan Peake, Daniel Adair, Roadrunner Records, Inc., and Warner 

Chappell Music, Inc. (collectively, the “Nickelback Defendants”) and Live Nation Entertainment, 

Inc. (“Live Nation”). Johnston alleges that the Nickelback Defendants copied his original musical 

composition, Rock Star, which he wrote in 2001 while a member of the band Snowblind Revival

(the “Copyrighted Work”). Complaint, Dkt. 1 ¶ 15. Johnston holds a federal copyright registration

for the Copyrighted Work, U.S. Copyright No. PA 2-216-632. Id.

From the late 1990s through the early 2000s, Snowblind Revival performed its music for A&R 

(artists and repertoire) representatives from numerous record labels. Id. ¶ 16. Johnston and 

Snowblind Revival also performed Johnston’s original songs in venues around the United States. 

Id. ¶¶ 16-17. In August 2001, Snowblind Revival created a master recording of Rock Star, along 

with three other original songs. Id. ¶ 17. The band made fifteen copies of the master recording and 

sent them to several record labels, including Universal Music Group and Warner Music Group,

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of which Defendants Roadrunner Records, Inc. and Warner Chappell Music, Inc. are wholly

owned indirect subsidiaries. Id.; Dkt. 24 at 1; Dkt. 25 at 1. Chad Kroeger, Michael Kroeger, Ryan 

Peake, and Daniel Adair are members of the band Nickelback, which is signed to Roadrunner 

Records. Dkt. 1 ¶¶ 3-6; Dkt. 21 at 6 n.1. Plaintiff alleges that the Nickelback Defendants had direct 

access to Johnston’s musical composition Rock Star as a result of Snowblind Revival’s marketing 

efforts. Dkt. 1 ¶ 18.

In January 2005, Nickelback released the song Rockstar on its album All the Right Reasons. 

Id. ¶ 20. The Nickelback band members each are credited as composers and songwriters for 

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Johnston voluntarily dismissed Defendant Warner Music Group on August 10, 2020. Dkts. 9 and 11.

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Rockstar. Id. Johnston alleges that “a substantial amount of the music in Rockstar is copied from 

[his] original composition Rock Star,” including “the tempo, song form, melodic structure, 

harmonic structures, and lyrical themes.” Id. ¶ 23. More than 4.5 million copies of Nickelback’s 

Rockstar have been sold since its debut in 2005. Id. ¶ 22. Nickelback also has performed Rockstar

live in concert hundreds of times. Id. Live Nation has promoted Nickelback’s live concerts at 

which the song was performed. Id. ¶ 11.

Johnston seeks damages for copyright infringement and an injunction against further 

infringement. Id. ¶ 1. The Nickelback Defendants and Live Nation move to dismiss Johnston’s 

Complaint for failure to state a claim.

II. Legal Standard

Rule 12(b)(6) allows a party to move to dismiss an action for failure to state a claim on which 

relief can be granted. In deciding a Rule 12(b)(6) motion to dismiss for failure to state a claim, the 

court accepts “all well-pleaded facts as true, viewing them in the light most favorable to the 

plaintiff.” In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007) (citation

omitted). The Supreme Court has explained that a complaint must contain sufficient factual matter 

“to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 

(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial 

plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable 

inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. 

While a complaint attacked by a Rule 12(b)(6) motion to dismiss does 

not need detailed factual allegations, a plaintiff’s obligation to provide 

the grounds of his entitlement to relief requires more than labels and 

conclusions, and a formulaic recitation of the elements of a cause of 

action will not do. Factual allegations must be enough to raise a right 

to relief above the speculative level, on the assumption that all the 

allegations in the complaint are true (even if doubtful in fact).

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Twombly, 550 U.S. at 555 (cleaned up). 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. Lone Star Fund V (U.S.), L.P. v. Barclays 

Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010).

III. Analysis

There are two types of copyright infringement: direct and secondary. BWP Media USA, Inc. v. 

T & S Software Assocs., Inc., 852 F.3d 436, 439 (5th Cir. 2017). Direct copyright infringement 

occurs when a party engages in conduct that violates the exclusive rights of a copyright owner.

Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 433 (1984). Secondary liability 

is a means of holding parties responsible for infringement by others even if they have not engaged 

in the infringing activity. Id. at 435. Secondary infringement occurs when one intentionally induces 

or encourages infringing acts by others or profits from such acts while declining to exercise a right 

to stop or limit them. Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 930 

(2005).

A. Direct Copyright Infringement

Defendants argue that Johnston cannot state a claim for copyright infringement because he 

fails to plead facts showing that they had access to the Copyrighted Work. Defendants also assert 

that Johnston cannot state a claim for copyright infringement because Rockstar is not substantially 

similar to the Copyrighted Work.

To state a claim for direct copyright infringement under the Copyright Act, a plaintiff must 

show (1) ownership of a valid copyright, and (2) copying of constituent elements of the plaintiff’s 

work that are original. Baisden v. I’m Ready Prods., Inc., 693 F.3d 491, 499 (5th Cir. 2012). To

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show copying, a plaintiff must plead and prove (1) factual copying, and (2) substantial similarity.

Guzman v. Hacienda Recs. & Recording Studio, Inc., 808 F.3d 1031, 1037 (5th Cir. 2015).

Factual copying 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. Id. Access 

may be shown if “the person who created the allegedly infringing work had a reasonable 

opportunity to view [or hear] the copyrighted work.” Batiste v. Lewis, 976 F.3d 493, 503 (5th Cir. 

2020). When access cannot be shown, the plaintiff may prove factual copying “by showing such a 

striking similarity between the two works that the similarity could only be explained by actual 

copying.” Armour v. Knowles, 512 F.3d 147, 152 n.3 (5th Cir. 2007) (internal quotation marks 

omitted). The works of the copyright holder and the alleged infringer will be deemed probatively 

similar if they are “adequately similar” when compared as a whole. Gen. Universal Sys., Inc. v. 

Lee, 379 F.3d 131, 141 (5th Cir. 2004).

1. Access

Access may be shown if a third party with possession of the Copyrighted Work was 

concurrently dealing with the copyright owner and alleged infringer. Am. Registry of Radiologic 

Technologists v. Bennett, 939 F. Supp. 2d 695, 704-05 (W.D. Tex. 2013). 

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. The Nickelback Defendants do not argue that Johnston has failed to meet the pleading 

requirements for probative similarity in assessing factual copying. 

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Johnston has alleged facts sufficient to raise his right to relief above the speculative level, 

which is all that is required at the pleading stage. Twombly, 550 U.S. at 570. Accordingly, Johnston 

has sufficiently pled access to state a claim for copyright infringement against the Nickelback 

Defendants.

With respect to Live Nation, Johnston does not allege that Live Nation accessed or copied his 

song, merely that it promoted the Nickelback concerts at which the song was performed. Dkt. 1 

¶ 11. In the absence of an allegation that Live Nation copied his work, Johnston cannot state a 

claim for direct infringement against Live Nation. The Court therefore recommends that Live 

Nation’s motion to dismiss be granted as to Johnston’s direct infringement claim.

2. Substantial Similarity

Defendants assert that Johnston cannot state a claim for copyright infringement because 

“fundamentally, the works at issue are not substantially similar to an ordinary observer.” Dkt. 17 

at 13. Defendants argue that the works are so dissimilar as to defeat Johnston’s claim for copyright 

infringement as a matter of law. Defendants ask the Court to compare the musical elements of the 

Copyrighted Work and Nickelback’s Rockstar and determine that Johnston fails to state a claim. 

Dkt. 17 at 13-15.

A determination that no substantial similarity exists as a matter of law is appropriate “if the 

Court can conclude, after viewing the evidence and drawing inferences in a manner most favorable 

to the nonmoving party, that no reasonable juror could find substantial similarity of ideas and 

expression.” Gen. Universal Sys., 379 F.3d at 142. When the original work and the allegedly 

infringing work are submitted with the pleadings for side-by-side comparison, the Court may

determine non-infringement a matter of law in deciding a Rule 12(b)(6) motion to dismiss. Rucker 

v. Harlequin Enters., No. H-12-1135, 2013 WL 707922, at *4 (S.D. Tex. Feb. 26, 2013). 

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Johnston alleges that “a substantial amount of the music in Rockstar is copied from [his] 

original composition Rock Star,” including “substantial portions of the tempo, song form, melodic 

structure, harmonic structures, and lyrical themes” Dkt. 1 ¶ 23. Johnston also alleges that “[t]he 

musical and lyrical themes of Nickelback’s Rockstar is substantially, strikingly similar to 

Johnston’s Rock Star. The portions copied are both quantitatively and qualitatively substantial to 

copyrightable elements of Johnston’s Rock Star, individually and in combination.” Id. ¶ 25.

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. Whether 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. But at the motion 

to dismiss stage, taking all well-pleaded allegations as true, Johnston has sufficiently pled 

substantial similarity to the Copyrighted Work. See Arista Records LLC v. Greubel, 453 

F. Supp. 2d 961, 965 (N.D. Tex. 2006) (stating that copyright infringement claims must satisfy 

only the minimal notice pleading requirements of Rule 8).

Accordingly, Johnston has stated a claim for direct copyright infringement claim against the 

Nickelback Defendants. The Court recommends that the Nickelback Defendants’ Motion to 

Dismiss Pursuant to Rule 12(b)(6) be denied. 

B. Secondary Infringement

In its motion, Live Nation argues that Johnston has offered no facts “justifying Live Nation’s 

status as a culpable party in this lawsuit” or that it “in any way specifically violated the Copyright 

Act.” Dkt. 18 at 1. Johnston does not address Live Nation’s argument in his Response.

A plaintiff is entitled to plead alternative claims for direct and secondary copyright 

infringement against a single defendant. Oppenheimer v. Deiss, No. A-19-CV-423-LY, 2019 

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WL 6525188, at *3 (W.D. Tex. Dec. 3, 2019) (citing Fed. R. Civ. P. 8(d)(3)), R. & R. adopted, 

2020 WL 10056214 (W.D. Tex. Jan. 15, 2020).

To establish a claim for contributory copyright infringement, a copyright owner must show 

that the defendant, with knowledge of the infringing activity, induced, caused, or materially 

contributed to the infringing conduct of another. Alcatel USA, Inc. v. DGI Techs., Inc., 166 F.3d 

772, 790 (5th Cir. 1999). To state a claim for vicarious infringement, a plaintiff must show that a 

defendant has (1) a direct financial interest in the infringing activity, and (2) the right and ability 

to supervise the activity that causes the infringement but declines to stop or limit it. Grokster, 545 

U.S. at 930. Intent or knowledge of the infringement is not an element of a claim for vicarious 

liability. Id. at n.9; UMG Recordings, Inc. v. Grande Commc’ns Networks, LLC, No. A-17-CA365-LY, 2018 WL 1096871, at *9 (W.D. Tex. Feb. 28, 2018), R. & R. adopted, 2018 WL 2182282 

(W.D. Tex. Mar. 26, 2018).

Johnston has not alleged facts showing that Live Nation (1) knew or had reason to know of the 

Nickelback Defendants’ allegedly infringing activity, and (2) induced, caused, or materially 

contributed to the Nickelback Defendants’ allegedly infringing conduct. Johnston alleges only that 

“Live Nation has promoted and continues to promote live concerts for [Warner Music Group] and 

the Nickelback Defendants, including performance of the infringing Rockstar song.” Dkt. 1 ¶ 11. 

Viewed in a light most favorable to Johnston, the Complaint lacks any factual allegations that 

would allow a reasonable inference that Live Nation was aware of and materially contributed to 

infringing activity. Therefore, Johnston has not sufficiently pled a claim for contributory 

infringement against Live Nation.

Johnston also fails to state a claim for vicarious liability against Live Nation. He alleges no

facts showing that Live Nation, in executing its promotional activities, had the right and ability to

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supervise or control Nickelback’s performance of Rockstar. See Montes v. Live Nation, No. 2:18-

cv-01150-SVW-JEM, 2018 WL 4964323, at *4 (C.D. Cal. May 9, 2018) (dismissing vicarious 

infringement claim because plaintiff failed to allege that concert promoter had right and ability to 

supervise infringing activity). Nor has Johnston alleged that Live Nation owned or managed a 

concert venue at which the infringement took place, which would give it the right to supervise the 

performance. See EMI April Music v. Jet Rumeurs, Inc., 632 F. Supp. 2d 619, 623 (N.D. Tex. 

2008) (entering default judgment against club owner on vicarious liability for infringing 

performance because plaintiff alleged right and ability to control activities at venue). Without 

allegations that would support an inference that Live Nation had right or ability to supervise the 

Nickelback Defendants’ allegedly infringing activity, Johnston has not stated a claim for vicarious 

infringement. Accordingly, the Court recommends that Johnston’s claims for contributory and 

vicarious infringement against Live Nation be dismissed for failure to state a claim.

C. Johnston’s Request for Leave to Amend

In his Response, Johnston seeks leave to file an amended complaint if the Court finds his 

pleadings deficient. Dkt. 21 at 5, 14-15. Courts should freely grant leave to amend when justice so 

requires. Fed. R. Civ. P. 15(a)(2). Courts should deny leave to amend when amendment would 

cause undue delay or undue prejudice to the opposing party, or the amendment would be futile or 

in bad faith. Mayeaux v. La. Health Serv. & Indem. Co., 376 F.3d 420, 425 (5th Cir. 2004). 

Amendment is futile where it “would fail to state a claim upon which relief could be granted.” 

Stripling v. Jordan Prod. Co., LLC, 234 F.3d 863, 872-73 (5th Cir. 2000).

Johnston offers no additional facts to cure the defects in his allegations against Live Nation 

and adequately state a sufficient claim. Dkt. 21 at 5, 14-15. Therefore, the Court is unable to assess 

whether amendment is warranted. See Edionwe v. Bailey, 860 F.3d 287, 294 (5th Cir. 2017) 

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(holding that leave to amend is not required where movant fails to apprise court of facts he would 

plead in amended complaint to cure any deficiencies). Accordingly, the Court recommends 

denying Johnston’s request for leave to amend.

IV. Recommendation

Based on the foregoing, the undersigned RECOMMENDS that the District Court DENY

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). 

The undersigned FURTHER RECOMMENDS that the District Court GRANT Defendant 

Live Nation Entertainment, Inc.’s Motion to Dismiss Plaintiff’s Complaint Pursuant to FRPC 

12(b)(6) (Dkt. 18) and dismiss all claims against Live Nation.

The undersigned FURTHER RECOMMENDS that the District Court DENY Plaintiff’s 

request for leave to amend his Complaint (Dkt. 21 at 5, 14-15).

It is FURTHER ORDERED that the Clerk remove this case from the Magistrate Court’s 

docket and RETURN it to the docket of the Honorable Robert Pitman. 

V. Warnings

The parties may file objections to this Report and Recommendation. A party filing objections 

must specifically identify those findings or recommendations to which objections are being made. 

The District Court need not consider frivolous, conclusive, or general objections. See Battle v. 

United States Parole Comm’n, 834 F.2d 419, 421 (5th Cir. 1987). A party’s failure to file written 

objections to the proposed findings and recommendations contained in this Report within fourteen 

(14) days after the party is served with a copy of the Report shall bar that party from de novo 

review by the District Court of the proposed findings and recommendations in the Report and, 

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except on grounds of plain error, shall bar the party from appellate review of unobjected-to 

proposed factual findings and legal conclusions accepted by the District Court. See 28 U.S.C. 

§ 636(b)(1); Thomas v. Arn, 474 U.S. 140, 150-53 (1985); Douglass v. United Servs. Auto. Ass’n, 

79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).

SIGNED on August 11, 2021.

SUSAN HIGHTOWER

UNITED STATES MAGISTRATE JUDGE

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