IP Law Daily, COPYRIGHT—C.D. Cal.: Musical legend John Mellencamp prevails against copyright infringement accusation, (Feb 13, 2026)

By Matthew Hersh, J.D.

The singer-songwriter did not have access to the work he was accused of plagiarizing.

A prominent singer-songwriter who once famously boasted of his small-town Indiana roots was not likely to have heard a song by an indie California band that performed exclusively at venues in San Diego and Los Angeles and distributed only a few thousand CDs in total, the federal court for the Central District of California has held. The court, in tossing a copyright infringement lawsuit that pitted the author and producer of the indie song against rock and roll legend John Mellencamp, also found that the two songs at issue “do not sound anything alike” (Robert Wheeler v. John Mellencamp, No. 2:24-cv-10176-MCS-AYP (C.D. Cal. Feb. 11, 2026)).

The lawsuit was brought by Robert Wheeler, a California songwriter and musician who performed between 1995 and 1997 with the band “Throwin Stones.” At some point in 1995, the complaint asserts, the band recorded and released a song called “Coffee.” The band then distributed the song by selling and giving away several thousand copies of a CD containing the song. In addition to this distribution, the complaint alleges, the song was occasionally played on local radio, and the band performed the song at various venues in San Diego and Los Angeles.

Twenty-six years later, the California songwriter alleges, he heard for the first time a song by Mellencamp entitled “Key West Intermezzo (I Saw You First).” Three years later, he filed this copyright lawsuit against Mellencamp alleging that the Indiana superstar unlawfully appropriated from “Coffee” in making “Key West.” The lawsuit also named record labels Republic Records and Mercury Records.

Mellencamp and the two labels moved for summary judgment on the copyright infringement claim, leading to this opinion.

Exclusion of expert. The court began by excluding the California songwriter’s expert musicologist Dr. Pablo D. Herrera Veitia. The court did so as a sanction for the songwriter’s failure to produce him for a deposition. Rather than make Dr. Herrera available for a full day as required by the federal rules, the court noted, the songwriter authorized only a one-hour telephonic deposition. Moreover, as Dr. Herrera was in his native Cuba at the time, the court noted, the internet connection was so unstable that Mellencamp’s counsel was only able to ask him one question during the allotted hour. Further, the court noted, the California songwriter refused to engage in a follow-up meeting and confer to discuss alternatives for continuing the deposition. As a result, the court observed, “Defendants were not able to subject Dr. Herrera’s opinions to the adversary process, and there is no cure now that discovery is closed and trial is set to begin in a matter of weeks.” The appropriate sanction for this violation, the court concluded “is exclusion.”

Access. The court also found that the songwriter did not establish a reasonable possibility that Mellencamp had access to the “Coffee” track before writing “Key West.” A significant problem for the songwriter, the court noted, was that the record established that Mellencamp and his band recorded Key West in May 1995—just months after the California songwriter began distributing “Coffee.” Moreover, the court noted, Mellencamp stated that he had never heard of the band during the lawsuit and had never travelled to California—the only place that the song was performed live or on the radio—during that time period. “Because Plaintiff’s performances and radio distribution were confined to Southern California during this time, and Mr. Mellencamp did not travel to California in 1995,” the court noted, “no rational factfinder could conclude that Mr. Mellencamp had a reasonable possibility of hearing Coffee before May 21, 1995.” The lawsuit therefore failed on this ground.

Striking similarity. Nor could the claim be recovered by virtue of the similarity between the songs, the court found. Because the songwriter had not met his burden to show a triable issue over access, the court noted, the only way he could avoid summary judgment was if he could show that the songs were “so strikingly similar as to preclude the possibility of independent creation.” But “[t]o the Court’s untrained ear,” the court noted, “the songs do not sound anything alike.” Indeed, the court noted, the songs appeared to have different tempos, different lyrics, and different overall sounds. “Is it possible there are technical similarities the Court, as a lay listener, is unable to appreciate? Perhaps,” the court stated. “But that is precisely the point—the only evidence Plaintiff offered to help the Court understand these nuances was Dr. Herrera’s expert report and opinions, which have now been excluded.” The complaint would therefore fail.

The Case is No. 2:24-cv-10176-MCS-AYP.

Judge: Scarsi, M.

Attorneys: Robert Wheeler, pro se. Daniel Imakyure (Davis Wright Tremaine LLP) for John Mellencamp.

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