California court dismisses case against Triller filed by Wixen Music Publishing

By Emmanuel Legrand

The $50 million lawsuit filed by US music publisher Wixen Music Publishing against short video app Triller, has been dismissed by a Federal Court in Santa Ana, California, on the grounds that the filing was not specific enough in identifying Wixen's status as the owner of the copyrights that it alleged Triller was infringing. At the heart of the ruling is whether the 1976 Copyright Act or the Copyright Act of 1909 applied in this case.

  Wixen sued Triller last December, arguing that the social media platform failed to secure the proper licenses with Wixen, and infringed its copyright. According to court filings, Wixen alleged that Triller was aware it had to negotiate licenses with Wixen and other publishers and chose not to do so. Wixen also argued that whether the 1976 or 1909 Act apply was "inconsequential."

  In its motion to dismiss,Triller claimed that Wixen had "not plausibly alleged that it holds the exclusive rights under the relevant statute to bring its claims" and that Wixen’s "failure to allege critical facts as to time" also independently warrants dismissal.

Clarification needed on when the songs were created

  Triller asserted that Wixen failed to demonstrate that it is “an owner or exclusive licensee of the right” sought to be enforced under Section 106 of the Copyright Act, and that even if Wixen “could plausibly allege that it holds the exclusive right ‘to authorise’ others to exercise certain Section 106 Rights, that would not be enough.”

  Judge James Selna granted Triller a motion to dismiss, stating in its ruling: “The Court agrees with Triller. 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. Without any clarification on when the songs (spanning eight pages) were created, Wixen’s Complaint fails because Wixen may lack standing to sue for the reasons discussed below."

  The judge noted that under the 1909 Act, copyrights were “incapable of assignment in parts,” and therefore, an assignment included “the totality of rights commanded by copyright.” Therefore, under the 1909 Act, “an exclusive licensee may not alone maintain an infringement action, he may do so, however, if he joins the copyright owner and may even join the owner as an involuntary party.” 

Ownership of works is at issue

  Under the 1976 Act, however, wrote the judge, "an exclusive licensee may proceed with a copyright infringement lawsuit even without the licensor’s presence."

  The judge added: “Put simply, while it is clear that the 1909 Act would govern when the ownership of a work is at issue, the cases upon which Wixen relies do not demonstrate that courts may look to the 1976 Act in these instances to determine the 'rights and remedies' afforded to those owners. Because certain works may be governed by the 1909 Act and others by the 1976 Act and the court – from the face of the complaint – cannot determine which works are governed by which act, the court grants the motion [to dismiss], with leave to amend. The court does not consider any other arguments raised by either party in doing so.”

  Wixen has 30 days as of Feb. 26 to re-file its complaint.