In November, Wixen Music Publishing filed a $50 million copyright infringement lawsuit against short-form video app (and fast-growing TikTok competitor) Triller. Now, a federal judge has dismissed the complaint in part because it’s unclear “whether the 1976 Act or the Copyright Act of 1909 applies” to the allegedly infringed works.
Wixen Music Publishing, which has clients including The Interrupters, Cake, and The Black Keys, maintained in its multimillion-dollar complaint that Triller had allowed its users to equip their videos with tracks that “have not been licensed and for which copyright owners are not compensated.”
Moreover, Wixen claimed in the 15-page-long suit that Triller higher-ups had “repeatedly failed” to remove the allegedly unlicensed tracks after being informed of their presence. The TikTok competitor “chose to brazenly disregard copyright law and commit willful and ongoing copyright infringement,” according to the $50 million action.
Triller CEO Mike Lu, it bears mentioning, promptly pushed back against Wixen’s lawsuit and the allegations therein, describing them as a collection of “extortionist demands” and stating that he was looking forward to his company’s day in court.
But as initially mentioned, a federal judge has dismissed the complaint (and set a 30-day deadline for Wixen to replead). Digital Music News obtained an exclusive copy of the corresponding order, which notes that Triller made two main arguments in support of dismissing the suit.
The first of these arguments centers on Wixen’s purportedly failing to demonstrate that it’s the “exclusive owner” of the works at hand, as defined under the Copyright Act’s Section 106. “Wixen calls itself an exclusive licensee and/or owner in the complaint,” per the legal text, but “Triller asserts that those allegations are conclusory and even contradictory with other assertions that the songwriters themselves own the songs.”
Building upon the point, the “administrative tasks” that the 43-year-old publishing company performs on behalf of its songwriter clients do not “plausibly suggest that Wixen has any enforceable rights under section 106 as an ‘exclusive licensee’ either,” per the court.
And the second argument, for its part, pertains to the publisher’s alleged failure to specify “when the songs in dispute were created, when Wixen purported to acquire rights in those songs, or when the alleged infringement occurred.”
The federal judge’s response to this element of the dismissal motion is more straightforward yet: “Wixen filed suit alleging violations of the Copyright Act of 1976, but it is not clear from the Complaint whether the 1976 Act or the Copyright Act of 1909 applies. … Wixen may lack standing to sue.”
After noting the technical differences between the acts – namely that any “exclusive licensee” can levy a copyright infringement suit without the owner only under the newer of the two – the court acknowledges that “numerous” rulings have found that the 1978 law supersedes the 1909 law even for works that were registered before 1978.
“However, the Ninth Circuit has ‘erroneously’ looked to [the] 1909 Act to determine the rights and remedies available to the owner and/or exclusive licensee of a copyright,” the text proceeds. “Regardless of how erroneous that approach may be, it is binding within the Circuit.”
Driving the point home, the decision indicates that the court “is bound to follow the Ninth Circuit precedent that ‘the rights afforded to copyrights created and published before 1978 are governed solely by the 1909 Act.’”
It’s unclear how many of the allegedly infringed works that Wixen disclosed (across eight total pages) were copyrighted prior to 1978, and at the time of this piece’s writing, the Calabasas-based company hadn’t publicly commented on the dismissal.
Triller remains embroiled in a high-profile dispute with Universal Music Group, and earlier this month, the app’s CEO, Mike Lu, fired back against claims that his company had misrepresented its user totals.
Digital Music News’ continuing coverage of Intellectual Property Protection and Litigation is sponsored by Pro Music Rights.