Wixen V Triller Copyright Infringment Lawsuit Complaint

Case 2:20-cv-10515-JVS-AFM Document 1 Filed 11/17/20 Page 1 of 15 Page ID #:1
1 DANIEL J. SCHACHT, #259717

dschacht@donahue.com
2 ANDREW S. MACKAY, #197074
amackay@donahue.com
3 PADMINI CHERUVU, #301292
pcheruvu@donahue.com
4 DONAHUE FITZGERALD LLP
Attorneys at Law
5 1999 Harrison Street 26th Floor
Oakland, California 94612-3520
6 Telephone: (510) 451-3300
Facsimile: (510) 451-1527
7
Attorneys for Plaintiff
8 WIXEN MUSIC PUBLISHING, INC.
9
UNITED STATES DISTRICT COURT
10
CENTRAL DISTRICT OF CALIFORNIA
11
WESTERN DIVISION
12
13
WIXEN MUSIC PUBLISHING, Case No.
14 INC.
COMPLAINT FOR COPYRIGHT
15 Plaintiff, INFRINGEMENT
16 v. JURY TRIAL DEMANDED
17 TRILLER, INC., a Delaware
corporation; and TRILLER, LLC, a
18 limited liability company,
19 Defendants.
20
21
22
23
24
25
26
27
28
-1-
COMPLAINT FOR COPYRIGHT INFRINGEMENT CASE NO.
1 Plaintiff Wixen Music Publishing, Inc. (“Wixen”) states and alleges as

2 follows for its complaint against defendants Triller, Inc. and Triller, LLC (together,
3 “Triller”).
4 NATURE OF THE ACTION
5 1. Wixen brings this action against Triller for willfully infringing the
6 copyrights in the musical compositions listed in Exhibit A (each a “Work” and
7 collectively the “Works”), each of which has been registered with the United States
8 Copyright Office. Wixen believes the actual number of infringed Wixen works to
9 be well over one thousand, and will amend its complaint upon discovery and
10 confirmation of a more complete list of Wixen works that Triller has infringed.
11 2. Triller is the owner and distributor of the Triller app (the “App”),
12 which is available via iOS and Android. The App is similar to the popular TikTok
13 app, and provides users with the ability to create and share short videos, and allows
14 users to easily add music to the video. Triller has, without authorization or
15 compensation, reproduced and made the Works available via the App to its App
16 users, resulting in thousands of audiovisual works incorporating, without
17 authorization or compensation, the Works.
18 JURSIDICTION AND VENUE
19 Parties
20 3. Wixen is a music publisher and a California corporation with its
21 principal place of business at 24025 Park Sorrento, Suite 130, Calabasas,
22 California. Wixen has standing to bring this action for copyright infringement
23 because it is the exclusive licensee and/or owner of the Works. Wixen has the
24 exclusive right to sign agreements, collect royalties, receive monies, issue
25 synchronization and other licenses, pay royalties, register copyrights, and otherwise
26 interact and assert rights on behalf of each copyright owner with or against musical
27 service companies such as Triller.
28 ///
-2-
1 4. Triller, Inc. is a Delaware corporation headquartered in New York,

2 New York, which owns and operates the App.
3 5. Triller, LLC is a limited liability company and the developer and
4 distributor of the App.
5 6. On information and belief, certain officers, directors, owners, and/or
6 agents of Triller have the right and ability to supervise or control the infringing
7 activity alleged herein and a direct financial benefit from that activity, such that
8 they are vicariously liable for Triller’s actions. Wixen will amend this complaint to
9 add said individuals as defendants.
10 Jurisdiction
11 7. This case is a civil action arising under the copyright laws of the
12 United States, 17 U.S.C. § 101, et seq. (the “Copyright Act”). This Court has
13 subject matter jurisdiction over Wixen’s claims pursuant to 28 U.S.C. §§ 1331
14 (federal subject matter jurisdiction) and 28 U.S.C. § 1338(a) (copyright actions).
15 8. The Court has personal jurisdiction over both Triller, Inc. and Triller,
16 LLC because they have continuous and systematic contacts within the Central
17 District of California. Triller claims six worldwide offices, including one in Los
18 Angeles, Los Angeles County, California. On information and belief, the App has
19 been advertised, downloaded and used within Los Angeles County, California.
20 9. Triller could and did reasonably anticipate being brought into this
21 Court because, among other reasons, Triller (i) has knowingly, intentionally, and
22 repeatedly reproduced and/or distributed the Works over the Internet and/or via its
23 App to California residents; (ii) knew or should have known that the harm caused
24 by its repeated unlicensed reproduction and distribution of the Works over the
25 Internet and App was aimed at songwriters and music publishers, including Wixen
26 and the songwriters it represents, who control compositions and reside in or near
27 Los Angeles County, California, a global hub of the music industry; and (iii) knew
28 or should have known that Wixen, an industry-leading music publisher for more
-3-
1 than 40 years, would suffer, and in fact did suffer, the brunt of the harm caused by
2 Triller’s unauthorized acts at Wixen’s principal place of business in Calabasas, Los
3 Angeles County, California, which is in the Western Division of the Central District
4 of California
5 Venue
6 10. Venue is proper in this District pursuant to 28 U.S.C. §§ 1391(b) and
7 (c) and 1400(a) because Triller is subject to personal jurisdiction in this District and
8 because a substantial part of the acts of infringement complained of herein occurs
9 or has occurred in this District.
10 11. This case is properly filed in the Western Division, as a substantial part
11 of events giving rise to this case have occurred here.
12 FACTS
13 Background on Wixen & the Works
14 12. Wixen is a music publisher that was formed in 1978 by Randall Wixen.
15 Wixen administers more than 50,000 songs written and/or owned by its more than
16 2,000 clients, including songs by some of the most popular and acclaimed musical
17 artists of the last 100 years. Wixen administers these compositions for its clients,
18 with the goal of enhancing the value of the compositions through licensing while
19 simultaneously preserving their integrity.
20 13. As a publishing administrator, Wixen is the exclusive licensee and/or
21 owner of the tens of thousands of musical compositions in its catalog, including the
22 Works. Wixen’s exclusive rights include registering songs with performing rights
23 organizations, filing copyright applications with the United States Copyright Office,
24 negotiating and issuing licenses (including synchronization, or “synch” licenses),
25 collecting royalties, and filing lawsuits for copyright infringement.
26 Background and Function of the Triller App
27 14. The Triller App is a video-sharing social network app first released in
28 July 2015. Triller claims the App has been downloaded over 120 million times.
-4-
1 15. Users use the App to create visual portions of videos of no more than
2 fifteen seconds in length, and synchronize those videos with Triller’s library of
3 music, creating short audiovisual works (“Videos”). To create the Videos, users can
4 choose background music from Triller’s library of music, edit the background
5 music to choose what portions of the song to use in the Videos, record a 15-second
6 video, edit the video or add filters, and then upload the finished Video to share with
7 others on the App or on third-party social media platforms. Once uploaded, the App
8 allows users to download or share Videos with others.
9 16. The screenshots below show some of the process of creating Videos
10 using a Work:
11
12
13
14
15
16
17
18
19
20
21
22
23
24 17. The App’s collaboration feature allows users to share their Videos
25 with other users designated as “friends” and then edit them together to share on the
26 App. The App has “Music” and “Social” tabs that are used to find trending Videos
27 from other user’s and to provide a feed of recommended Videos for each user based
28
-5-
1 on the user’s previous actions on the App. The App has a “Discovery” section that
2 is used to search for and listen to different songs that are featured or trendy, or
3 search for specific songs.
4 18. Below is a screenshot of the App’s “Discovery” section when
5 searching for the Work “Mr. Roboto”:
6
9
10
11
12
13
14
15
16
17
18
19 Triller’s Infringing Activities

20 19. Many Videos incorporate musical compositions, including the Works,
21 from Triller’s music library that have not been licensed and for which copyright
22 owners are not compensated.
23 20. With regard to the Works, Triller allows and encourages its users to
24 access the App, find the Works, and create new Videos and posts using the Works.
25 Specifically, Triller is making the Works available to users, including by cataloging
26 them; promoting them, including via Triller-curated playlists; and reproducing and
27 making the Works available through its music library.
28 ///
-6-
1 21. The following screenshots are a small sample of the Works available
2 on Triller:
3
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-7-
1 22. To legally reproduce and/or distribute the Works on its App, and to
2 synchronize and allow the synchronization of the Works with videos, Triller was
3 required to obtain permission from Wixen. The license to allow a musical work to
4 be used as part of an audiovisual work is commonly referred to as a “synch” or
5 “synch license.”
6 23. Triller is well aware that it needs to negotiate licenses with Wixen and
7 other publishers. The President and CEO of the National Music Publishers’
8 Association (NMPA), a trade group to which Wixen belongs, criticized Triller for
9 not fully licensing NMPA members’ songs, stating that “Triller’s popularity is
10 largely based on music. It boasts ‘millions of songs at your fingertips,’ however
11 many of those songs have not been properly licensed. The pattern of tech platforms
12 asking for forgiveness instead of permission to use songwriter’s work must stop.
13 Triller must legitimize its business by properly licensing all music on its platform.”
14 Triller’s CEO Mike Lu responded in an interview released on August 10, 2020, by
15 stating that “I understand his point, which is it seems a little bit unfair for anyone to
16 not have the NMPA’s blessing in this industry. Our lawyers spoke to him right after
17 that article came out, and we hope to come to an agreement very soon — because
18 we’ve already started working with some of the publishers [who are members of]
19 NMPA. Our goal is to work with all of them.”
20 24. Triller could have reached out and negotiated with Wixen to obtain the
21 necessary licenses, as its CEO promised. Instead, it chose to brazenly disregard
22 copyright law and commit willful and ongoing copyright infringement. Among the
23 evidence of Triller’s willfulness is that it continued to use, copy, and exploit the
24 Works even after Wixen notified Triller that it had not obtained the proper licenses
25 for the use of the Works.
26 25. On August 17, 2020, Wixen informed Triller that Triller was making
27 unauthorized use of songs from its catalog, including of the Works. Rather than
28 acknowledging that it had uploaded thousands of Wixen songs to its music library
-8-
1 without permission and facilitated the creation of thousands of Videos

2 incorporating the Works, Triller told Wixen that it could locate fewer than five
3 Videos containing the Works. In addition, Triller repeatedly advised Wixen that it
4 would remove Works from the App, but repeatedly failed to do so.
5 26. Based solely on the success of the App, Triller has secured at least
6 $100 million in funding based on a valuation of $1.25 billion. According to
7 Triller’s co-owner, “right now, our numbers are higher than any of our competitors.
8 We’ll be [generating] a couple hundred million dollars and that’s without
9 advertising.”
10 27. Triller’s CEO claims that “Triller puts artists and creators first, and our
11 goal is to create an ecosystem where everyone can benefit.” However, rather than
12 pay Wixen and the songwriters Wixen represents to use their Works, Triller pays
13 “social influencers” substantial sums of money and provides them with Rolls
14 Royces, mansions (with housekeeping), weekly sushi dinners at Nobu, and, in at
15 least one instance, a helicopter.
16 28. For the foregoing reasons, Wixen is entitled to the maximum statutory
17 relief.
18 FIRST CLAIM FOR RELIEF
19 (Direct Copyright Infringement)
20 29. Wixen realleges and incorporates herein by this reference each of the
21 allegations contained in Paragraphs 1 through 28 above as though fully set forth.
22 30. Wixen is the owner and/or exclusive licensee of the copyright in each
23 Work. Wixen’s exclusive rights include the rights to issue synchronization licenses
24 and to authorize the creation of derivative works.
25 31. Under Section 106 of the Copyright Act, 17 U.S.C. § 106, Wixen has
26 the exclusive rights, among others, to reproduce and distribute each Work, and to
27 permit the creation of derivative works incorporating each Work, as well as the
28 right to authorize others to exercise any of these rights.
-9-
1 32. Triller has infringed many of the exclusive rights set forth in 17 U.S.C.
2 § 106. Among other things, Triller has made unauthorized reproductions, including
3 in synchronization with videos; engaged in unauthorized distribution of the
4 copyrighted Works; engaged in the unauthorized creation of derivative works; and
5 publicly performed the Works. Such conduct constitutes copyright infringement
6 pursuant to 17 U.S.C. §§ 106 et seq.
7 33. Each Work is an original work fixed in a tangible medium of
8 expression and is a copyrightable subject matter within the meaning of Section 102
9 of the Copyright Act.
10 34. Each Work reproduced by Triller and/or made accessible by Triller to
11 its users constitutes a separate and distinct act of infringement. In addition, Triller’s
12 reproduction and distribution of each Work in its music library and its promotional
13 materials, including Triller playlists, constitutes a separate and distinct act of
14 infringement, for which Triller is a direct infringer.
15 35. Triller’s conduct has at all times been willful, intentional, purposeful,
16 and in disregard of and indifferent to the rights of Wixen.
17 36. As a direct and proximate result of Triller’s willful and infringing
18 conduct, Wixen is entitled to actual damages, including the profits of Triller, as will
19 be proven at trial, pursuant to 17 U.S.C. § 504(b). Among other damages, Triller’s
20 unlawful actions harm the value of the Works to legitimate licensees of Wixen,
21 including Triller’s rival, TikTok.
22 37. In the alternative, pursuant to 17 U.S.C. § 504(c), Wixen is entitled to
23 receive the maximum amount of statutory damages for willful copyright
24 infringement of $150,000 per work infringed, for the sum of at least for the sum of
25 at least $50,400,000, as will be proven at trial.
26 38. Wixen is further entitled to recover its attorneys’ fees and costs
27 pursuant to 17 U.S.C. § 505.
28 ///
- 10 -
1 39. Triller’s acts, including its failure to develop and implement

2 procedures to properly license compositions, have caused and will continue to
3 cause irreparable harm and injury to Wixen and the songwriters it represents, for
4 which they have no adequate remedy at law. Wixen is therefore entitled to an
5 injunction pursuant to 17 U.S.C. § 502 to prevent and restrain Triller’s ongoing
6 copyright infringement.
7 SECOND CLAIM FOR RELIEF
8 (Contributory Copyright Infringement)
9 40. Wixen realleges and incorporates herein by this reference each of the
10 allegations contained in Paragraphs 1 through 39 above as though fully set forth.
11 41. Wixen is informed and believes and thereon alleges that Triller has had
12 knowledge of and/or reckless disregard for the infringing activities of its users, and
13 induced, caused, or materially contributed to its users’ infringing conduct. Triller is
14 therefore contributorily liable for each such act of infringement of the Work under
15 17 U.S.C. §§ 106 and 501.
16 42. Wixen is informed and believes and thereon alleges that Triller
17 knowingly and materially contributed to the infringement by facilitating and/or
18 providing a platform for its users to make unauthorized reproductions and
19 derivative works, and to engage in the unauthorized distribution of the copyrighted
20 Works, the unauthorized creation of derivative works, the unauthorized public
21 performance of the Works, and the unauthorized creation of derivative works. On
22 information and belief, Triller intends, encourages, and induces its users to use the
23 Works in these ways.
24 43. Wixen is informed and believes and thereon alleges that Triller has
25 taken affirmative steps to cause, induce, and materially contribute to the direct
26 infringement of Wixen’s copyrighted Works by falsely representing that it has had
27 any right to license, reproduce, distribute, or otherwise exploit the Works in any
28 ///
- 11 -
1 way, and by facilitating or providing its users the opportunity to reproduce,

2 distribute, or otherwise exploit the Works on its App.
3 44. Triller is aware that it lacks any rights in and to the Works and that its
4 users are unlawfully reproducing, distributing, and publicly performing the Works
5 on its App.
6 45. Triller’s aforesaid acts of contributory infringement are knowing,
7 willful, intentional, purposeful, and in disregard of Wixen’s exclusive rights.
8 46. As a direct and proximate result of the contributory infringements by
9 Triller, Wixen is entitled to actual damages, including the profits of Triller, as will
10 be proven at trial, pursuant to 17 U.S.C. § 504(b).
11 47. In the alternative, pursuant to 17 U.S.C. § 504(c), Wixen is entitled to
12 receive the maximum amount of statutory damages for willful copyright
13 infringement, $150,000 per video, as will be proven at trial.
14 48. Wixen is further entitled to recover its attorneys’ fees and costs
15 pursuant to 17 U.S.C. § 505.
16 49. As a direct and proximate result of the foregoing acts and conduct,
17 Wixen and the songwriters it represents have suffered and will continue to suffer
18 irreparable harm and injury, for which they have no adequate remedy at law. Wixen
19 is therefore entitled to an injunction pursuant to 17 U.S.C. § 502 to prevent and
20 restrain Triller’s ongoing copyright infringement, including ordering Triller to
21 develop and implement procedures to comply with the Copyright Act.
22 PRAYER FOR RELIEF
23 WHEREFORE, Wixen seeks relief as follows:
24 As to Claim for Relief I:
25 1. An award of damages pursuant to 17 U.S.C. § 504(b), including actual
26 damages, inclusive of the injury to the market value of Wixen’s copyrights in the
27 Works, and the profits of Triller that are not taken into account in computing the
28 actual damages, as will be proven at trial, or, in the alternative, the maximum
- 12 -
1 amount of statutory damages pursuant to 17 U.S.C. § 504(c), $150,000 per

2 infringement, as will be proven at trial;
3 2. Injunctive and/or declaratory relief as is necessary to protect the
4 interests of Wixen pursuant to 17 U.S.C. § 502, including requiring Triller to
5 (a) develop and implement procedures for identifying and properly licensing songs
6 and (b) pay for the services of a third party auditor to identify the owners of songs
7 reproduced and/or distributed by Triller despite Triller’s failure to first obtain a
8 license prior to reproducing and/or distributing the Works;
9 3. Attorneys’ fees and costs pursuant to 17 U.S.C. § 505 and under other
10 applicable law;
11 4. Pre- and post-judgment interest to the extent allowable; and
12 5. Such other and further relief that the Court may deem just and proper.
13 As to Claim for Relief II:
14 1. An award of damages pursuant to 17 U.S.C. § 504(b), including actual
15 damages, inclusive of the injury to the market value of Wixen’s rights in each Work,
16 and the profits of Triller that are not taken into account in computing the actual
17 damages, as will be proven at trial, or, in the alternative, the maximum amount of
18 statutory damages pursuant to 17 U.S.C. § 504(c), of $150,000 per infringement, as
19 will be proven at trial;
20 2. Injunctive and/or declaratory relief as is necessary to protect the
21 interests of Wixen pursuant to 17 U.S.C. § 502;
22 3. Attorneys’ fees and costs pursuant to 17 U.S.C. § 505 and under other
23 applicable law;
24 4. Pre- and post-judgment interest to the extent allowable; and
25 ///
26 ///
27 ///
28 ///
- 13 -
1 5. Such other and further relief that the Court may deem just and proper.
2 Dated: November 17, 2020 DONAHUE FITZGERALD LLP
3
4 By: /s/Andrew S. MacKay

Andrew S. MacKay
5 Attorneys for Plaintiff
WIXEN MUSIC PUBLISHING, INC.
6
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
- 14 -
1 DEMAND FOR JURY TRIAL

2 Pursuant to Rule 38(b) of the Federal Rules of Civil Procedure, Wixen
3 demands a trial by jury in this action.
4
Dated: November 17, 2020 DONAHUE FITZGERALD LLP
5
6
By: /s/Andrew S. MacKay
7 Andrew S. MacKay
Attorneys for Plaintiff
8 WIXEN MUSIC PUBLISHING, INC.
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
- 15 -

Wixen V Triller Copyright Infringment Lawsuit Complaint

Uploaded by

Document Information

Original Title

Copyright

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Wixen V Triller Copyright Infringment Lawsuit Complaint

Uploaded by

Copyright:

Case 2:20-cv-10515-JVS-AFM Document 1 Filed 11/17/20 Page 1 of 15 Page ID #:1

1 DANIEL J. SCHACHT, #259717

1 Plaintiff Wixen Music Publishing, Inc. (“Wixen”) states and alleges as

1 4. Triller, Inc. is a Delaware corporation headquartered in New York,

19 Triller’s Infringing Activities

1 without permission and facilitated the creation of thousands of Videos

1 39. Triller’s acts, including its failure to develop and implement

1 way, and by facilitating or providing its users the opportunity to reproduce,

1 amount of statutory damages pursuant to 17 U.S.C. § 504(c), $150,000 per

4 By: /s/Andrew S. MacKay

1 DEMAND FOR JURY TRIAL

You might also like