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IP News

By Justin Tilghman and Howard J. Shire
April 01, 2024
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Appeals Court Backs Nickelback In Copyright Infringement Case

In Johnston v. Kroeger, No. 23-50254 (5th Cir. Feb. 19, 2024), the United States Court of Appeals for the Fifth Circuit affirmed the grant of summary judgment for copyright infringement based on a lack of evidence of factual copying.

Kirk Johnston, a musician and songwriter for a band called Snowblind, sued members of the popular band Nickelback and their record label and publishing company for copyright infringement. In 2001, Johnston wrote the musical composition for the song Rock Star, for which he registered the copyright and claims that Nickelback copied in their similarly titled song Rockstar. The perceived similarities between the songs led Johnston to file a copyright infringement suit in 2020. Nickelback moved for summary judgment, and the district court referred the motion to a magistrate judge, who granted the motion, concluding that Johnston had not demonstrated a genuine issue of material fact as to the existence of factual copying by Nickelback.

The district court adopted the magistrate's recommendation and dismissed Johnston's claim. Johnston appealed this decision to the Fifth Circuit, arguing that: 1) Nickelback indeed had a reasonable opportunity to access his song; and 2) the district court applied the incorrect standard for determining similarity, but, even under the striking similarity standard, the songs are too alike to be explained by something other than copying. Finding no merit in Johnston's contentions, the Fifth Circuit affirmed the district court's grant of summary judgment.

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