A judge has thrown out a lawsuit that claimed John Mellencamp’s hit 1996 song “Key West Intermezzo (I Saw You First)” copied a little-known track that was self-released by a San Diego band a year earlier.
The Wednesday (Feb. 11) order in California federal court disposed of a copyright infringement claim brought in 2024 by Robert Wheeler, who was part of a band called Throwin’ Stones in the late ’90s. Wheeler alleged Mellencamp stole the hook from the band’s 1995 song “Coffee” for “Key West Intermezzo,” which hit No. 14 on the Billboard Hot 100.
Mellencamp says he’d never even heard of Throwin’ Stones or “Coffee” before the lawsuit, and Judge Mark C. Scarsi determined that there’s no evidence showing how the rocker — who was confined to his home in Indiana while writing “Key West Intermezzo” in 1995 because of a recent heart attack — could have heard a song that only played on a few local radio stations and at some Southern California bars.
Copyright law requires that if a plaintiff cannot show their original work was accessed by an alleged infringer, they must demonstrate a “striking similarity” between the two creations in order to move forward to trial. According to Judge Scarsi, Wheeler did not meet this high bar.
“To the court’s untrained ear, the songs do not sound anything alike, let alone so unmistakably similar that, as a matter of logic, the only explanation must be copying,” reads the decision. “The songs have different tempos, different lyrics and different overall sounds.”
In most music copyright cases, the technical similarities between two songs are analyzed based on dueling expert reports from musicologists retained by both sides. The problem for Wheeler is that his chosen expert, an anthropologist named Dr. Pablo D. Herrera Veitia, never completed a deposition after opining that “Coffee” and “Key West Intermezzo” share key features in their hooks.
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This means Mellencamp’s lawyers never got a chance to probe the adequacy of this analysis or whether Herrera was even its author, as they expected, based on odd timing and metadata, that Wheeler may have authored it himself and then attached Herrera’s name. Judge Scarsi struck the expert report completely as a result, leaving Wheeler with no hard evidence of similarity.
“Is it possible there are technical similarities the court, as a lay listener, is unable to appreciate? Perhaps,” wrote the judge. “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. Without any expert testimony to help the jury understand the purported technical similarities between the two songs, no reasonable juror would be able to conclude that the songs are so strikingly similar that the only logical explanation is copying.”
Wednesday’s opinion ends the lawsuit as to both Mellencamp and Mercury Records, which released “Key West Intermezzo” as a single off the 1996 album Mr. Happy Go Lucky. Reps for the singer and label did not immediately return requests for comment.
Wheeler, who represented himself in the case without a lawyer, also did not return an inquiry from Billboard.
