Photo: AFP
Almost a month after a Texas musician made news with a lawsuit accusing Nickelback of plagiarizing its 2005 mega hit "Rockstar" from a song he wrote a few years prior, the band has issued a reply in new court documents.
The Canadian rockers say the two tracks "sound nothing alike" and that the plaintiff, Kirk Johnston, could not identify in his complaint "any specific lyrical similarities between the works at issue; he could only conceivably point to the titles of the two works and 'lyrical' themes."
In August, Magistrate Judge Susan Hightower wrote that Johnston's complaint "raise his right to relief above the speculative level, which is all that is required at the pleading stage." She referred the case to Judge Robert Pitman of the U.S. District Court for the Western District of Texas.
In its latest filing, Nickelback pointed out that song titles are "not protectable by copyright" and that the "commonplace lyrical theme of imagining being a rock star" is also not protected. The band says that's where the similarities end.
Johnston's band Snowblind Revival recorded a song called "Rock Star" in 2001 and sent copies to a number of record labels, including Roadrunner Records and Warner Chappell Music, Inc., both of which work with Nickelback.
While "Rock Star" didn't garner Snowblind Revival much airplay, Johnston claims Nickelback had access to it based on the label's possession of the recording and his own band's marketing efforts. He claims Nickelback's similarly-titled hit from its 2005 All The Right Reasons album, contains similar "tempo, song form, melodic structure, harmonic structures, and lyrical themes."
Nickelback countered, saying that their song is "obviously slower" in tempo, in two different keys (both major and minor) and in a different genre, altogether. Further, Johnston's complaint does not provide an explanation for "means by which [his song] could have ended up in the hands of the individual members of Nickelback" — only that the record labels had received copies in the mail.
Johnston is seeking damages for copyright infringement and an injunction against further infringement.
Nickelback maintains that Johnston's claim should be thrown out of court because "fundamentally, the works at issue are not substantially similar to an ordinary observer."