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`DANIEL J. SCHACHT, #259717
`dschacht@donahue.com
`ANDREW S. MACKAY, #197074
`amackay@donahue.com
`PADMINI CHERUVU, #301292
`pcheruvu@donahue.com
`DONAHUE FITZGERALD LLP
`Attorneys at Law
`1999 Harrison Street 26th Floor
`Oakland, California 94612-3520
`Telephone: (510) 451-3300
`Facsimile:
`(510) 451-1527
`
`Attorneys for Plaintiff
`WIXEN MUSIC PUBLISHING, INC.
`
`
`UNITED STATES DISTRICT COURT
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`CENTRAL DISTRICT OF CALIFORNIA
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`WESTERN DIVISION
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`WIXEN MUSIC PUBLISHING,
`INC.
`
`Plaintiff,
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`v.
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`TRILLER, INC., a Delaware
`corporation; and TRILLER, LLC, a
`limited liability company,
`
`Case No.
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`COMPLAINT FOR COPYRIGHT
`INFRINGEMENT
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`JURY TRIAL DEMANDED
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`Defendants.
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`COMPLAINT FOR COPYRIGHT INFRINGEMENT
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`CASE NO.
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`- 1 -
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`Case 2:20-cv-10515-JVS-AFM Document 1 Filed 11/17/20 Page 2 of 15 Page ID #:2
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`Plaintiff Wixen Music Publishing, Inc. (“Wixen”) states and alleges as
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`follows for its complaint against defendants Triller, Inc. and Triller, LLC (together,
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`“Triller”).
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`NATURE OF THE ACTION
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`1. Wixen brings this action against Triller for willfully infringing the
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`copyrights in the musical compositions listed in Exhibit A (each a “Work” and
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`collectively the “Works”), each of which has been registered with the United States
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`Copyright Office. Wixen believes the actual number of infringed Wixen works to
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`be well over one thousand, and will amend its complaint upon discovery and
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`confirmation of a more complete list of Wixen works that Triller has infringed.
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`2.
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`Triller is the owner and distributor of the Triller app (the “App”),
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`which is available via iOS and Android. The App is similar to the popular TikTok
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`app, and provides users with the ability to create and share short videos, and allows
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`users to easily add music to the video. Triller has, without authorization or
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`compensation, reproduced and made the Works available via the App to its App
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`users, resulting
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`in
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`thousands of audiovisual works incorporating, without
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`authorization or compensation, the Works.
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`JURSIDICTION AND VENUE
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`Parties
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`3. Wixen is a music publisher and a California corporation with its
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`principal place of business at 24025 Park Sorrento, Suite 130, Calabasas,
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`California. Wixen has standing to bring this action for copyright infringement
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`because it is the exclusive licensee and/or owner of the Works. Wixen has the
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`exclusive right to sign agreements, collect royalties, receive monies, issue
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`synchronization and other licenses, pay royalties, register copyrights, and otherwise
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`interact and assert rights on behalf of each copyright owner with or against musical
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`service companies such as Triller.
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`///
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`COMPLAINT FOR COPYRIGHT INFRINGEMENT
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`CASE NO.
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`- 2 -
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`Case 2:20-cv-10515-JVS-AFM Document 1 Filed 11/17/20 Page 3 of 15 Page ID #:3
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`4.
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`Triller, Inc. is a Delaware corporation headquartered in New York,
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`New York, which owns and operates the App.
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`5.
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`Triller, LLC is a limited liability company and the developer and
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`distributor of the App.
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`6.
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`On information and belief, certain officers, directors, owners, and/or
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`agents of Triller have the right and ability to supervise or control the infringing
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`activity alleged herein and a direct financial benefit from that activity, such that
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`they are vicariously liable for Triller’s actions. Wixen will amend this complaint to
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`add said individuals as defendants.
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`Jurisdiction
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`7.
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`This case is a civil action arising under the copyright laws of the
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`United States, 17 U.S.C. § 101, et seq. (the “Copyright Act”). This Court has
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`subject matter jurisdiction over Wixen’s claims pursuant to 28 U.S.C. §§ 1331
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`(federal subject matter jurisdiction) and 28 U.S.C. § 1338(a) (copyright actions).
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`8.
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`The Court has personal jurisdiction over both Triller, Inc. and Triller,
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`LLC because they have continuous and systematic contacts within the Central
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`District of California. Triller claims six worldwide offices, including one in Los
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`Angeles, Los Angeles County, California. On information and belief, the App has
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`been advertised, downloaded and used within Los Angeles County, California.
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`9.
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`Triller could and did reasonably anticipate being brought into this
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`Court because, among other reasons, Triller (i) has knowingly, intentionally, and
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`repeatedly reproduced and/or distributed the Works over the Internet and/or via its
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`App to California residents; (ii) knew or should have known that the harm caused
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`by its repeated unlicensed reproduction and distribution of the Works over the
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`Internet and App was aimed at songwriters and music publishers, including Wixen
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`and the songwriters it represents, who control compositions and reside in or near
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`Los Angeles County, California, a global hub of the music industry; and (iii) knew
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`or should have known that Wixen, an industry-leading music publisher for more
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`COMPLAINT FOR COPYRIGHT INFRINGEMENT
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`CASE NO.
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`- 3 -
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`Case 2:20-cv-10515-JVS-AFM Document 1 Filed 11/17/20 Page 4 of 15 Page ID #:4
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`than 40 years, would suffer, and in fact did suffer, the brunt of the harm caused by
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`Triller’s unauthorized acts at Wixen’s principal place of business in Calabasas, Los
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`Angeles County, California, which is in the Western Division of the Central District
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`of California
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`Venue
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`10. Venue is proper in this District pursuant to 28 U.S.C. §§ 1391(b) and
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`(c) and 1400(a) because Triller is subject to personal jurisdiction in this District and
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`because a substantial part of the acts of infringement complained of herein occurs
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`or has occurred in this District.
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`11. This case is properly filed in the Western Division, as a substantial part
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`of events giving rise to this case have occurred here.
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`FACTS
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`Background on Wixen & the Works
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`12. Wixen is a music publisher that was formed in 1978 by Randall Wixen.
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`Wixen administers more than 50,000 songs written and/or owned by its more than
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`2,000 clients, including songs by some of the most popular and acclaimed musical
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`artists of the last 100 years. Wixen administers these compositions for its clients,
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`with the goal of enhancing the value of the compositions through licensing while
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`simultaneously preserving their integrity.
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`13. As a publishing administrator, Wixen is the exclusive licensee and/or
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`owner of the tens of thousands of musical compositions in its catalog, including the
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`Works. Wixen’s exclusive rights include registering songs with performing rights
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`organizations, filing copyright applications with the United States Copyright Office,
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`negotiating and issuing licenses (including synchronization, or “synch” licenses),
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`collecting royalties, and filing lawsuits for copyright infringement.
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`Background and Function of the Triller App
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`14. The Triller App is a video-sharing social network app first released in
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`July 2015. Triller claims the App has been downloaded over 120 million times.
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`COMPLAINT FOR COPYRIGHT INFRINGEMENT
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`CASE NO.
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`- 4 -
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`Case 2:20-cv-10515-JVS-AFM Document 1 Filed 11/17/20 Page 5 of 15 Page ID #:5
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`15. Users use the App to create visual portions of videos of no more than
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`fifteen seconds in length, and synchronize those videos with Triller’s library of
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`music, creating short audiovisual works (“Videos”). To create the Videos, users can
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`choose background music from Triller’s library of music, edit the background
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`music to choose what portions of the song to use in the Videos, record a 15-second
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`video, edit the video or add filters, and then upload the finished Video to share with
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`others on the App or on third-party social media platforms. Once uploaded, the App
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`allows users to download or share Videos with others.
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`16. The screenshots below show some of the process of creating Videos
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`using a Work:
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`17. The App’s collaboration feature allows users to share their Videos
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`with other users designated as “friends” and then edit them together to share on the
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`App. The App has “Music” and “Social” tabs that are used to find trending Videos
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`from other user’s and to provide a feed of recommended Videos for each user based
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`COMPLAINT FOR COPYRIGHT INFRINGEMENT
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`CASE NO.
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`Case 2:20-cv-10515-JVS-AFM Document 1 Filed 11/17/20 Page 6 of 15 Page ID #:6
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`on the user’s previous actions on the App. The App has a “Discovery” section that
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`is used to search for and listen to different songs that are featured or trendy, or
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`search for specific songs.
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`18. Below is a screenshot of the App’s “Discovery” section when
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`searching for the Work “Mr. Roboto”:
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`Triller’s Infringing Activities
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`19. Many Videos incorporate musical compositions, including the Works,
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`from Triller’s music library that have not been licensed and for which copyright
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`owners are not compensated.
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`20. With regard to the Works, Triller allows and encourages its users to
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`access the App, find the Works, and create new Videos and posts using the Works.
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`Specifically, Triller is making the Works available to users, including by cataloging
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`them; promoting them, including via Triller-curated playlists; and reproducing and
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`making the Works available through its music library.
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`///
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`COMPLAINT FOR COPYRIGHT INFRINGEMENT
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`CASE NO.
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`Case 2:20-cv-10515-JVS-AFM Document 1 Filed 11/17/20 Page 7 of 15 Page ID #:7
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`21. The following screenshots are a small sample of the Works available
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`on Triller:
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`COMPLAINT FOR COPYRIGHT INFRINGEMENT
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`CASE NO.
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`Case 2:20-cv-10515-JVS-AFM Document 1 Filed 11/17/20 Page 8 of 15 Page ID #:8
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`22. To legally reproduce and/or distribute the Works on its App, and to
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`synchronize and allow the synchronization of the Works with videos, Triller was
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`required to obtain permission from Wixen. The license to allow a musical work to
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`be used as part of an audiovisual work is commonly referred to as a “synch” or
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`“synch license.”
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`23. Triller is well aware that it needs to negotiate licenses with Wixen and
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`other publishers. The President and CEO of the National Music Publishers’
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`Association (NMPA), a trade group to which Wixen belongs, criticized Triller for
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`not fully licensing NMPA members’ songs, stating that “Triller’s popularity is
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`largely based on music. It boasts ‘millions of songs at your fingertips,’ however
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`many of those songs have not been properly licensed. The pattern of tech platforms
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`asking for forgiveness instead of permission to use songwriter’s work must stop.
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`Triller must legitimize its business by properly licensing all music on its platform.”
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`Triller’s CEO Mike Lu responded in an interview released on August 10, 2020, by
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`stating that “I understand his point, which is it seems a little bit unfair for anyone to
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`not have the NMPA’s blessing in this industry. Our lawyers spoke to him right after
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`that article came out, and we hope to come to an agreement very soon — because
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`we’ve already started working with some of the publishers [who are members of]
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`NMPA. Our goal is to work with all of them.”
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`24. Triller could have reached out and negotiated with Wixen to obtain the
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`necessary licenses, as its CEO promised. Instead, it chose to brazenly disregard
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`copyright law and commit willful and ongoing copyright infringement. Among the
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`evidence of Triller’s willfulness is that it continued to use, copy, and exploit the
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`Works even after Wixen notified Triller that it had not obtained the proper licenses
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`for the use of the Works.
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`25. On August 17, 2020, Wixen informed Triller that Triller was making
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`unauthorized use of songs from its catalog, including of the Works. Rather than
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`acknowledging that it had uploaded thousands of Wixen songs to its music library
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`COMPLAINT FOR COPYRIGHT INFRINGEMENT
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`CASE NO.
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`Case 2:20-cv-10515-JVS-AFM Document 1 Filed 11/17/20 Page 9 of 15 Page ID #:9
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`without permission and facilitated
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`the creation of
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`thousands of Videos
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`incorporating the Works, Triller told Wixen that it could locate fewer than five
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`Videos containing the Works. In addition, Triller repeatedly advised Wixen that it
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`would remove Works from the App, but repeatedly failed to do so.
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`26. Based solely on the success of the App, Triller has secured at least
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`$100 million in funding based on a valuation of $1.25 billion. According to
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`Triller’s co-owner, “right now, our numbers are higher than any of our competitors.
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`We’ll be [generating] a couple hundred million dollars and that’s without
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`advertising.”
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`27. Triller’s CEO claims that “Triller puts artists and creators first, and our
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`goal is to create an ecosystem where everyone can benefit.” However, rather than
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`pay Wixen and the songwriters Wixen represents to use their Works, Triller pays
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`“social influencers” substantial sums of money and provides them with Rolls
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`Royces, mansions (with housekeeping), weekly sushi dinners at Nobu, and, in at
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`least one instance, a helicopter.
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`28. For the foregoing reasons, Wixen is entitled to the maximum statutory
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`relief.
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`FIRST CLAIM FOR RELIEF
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`(Direct Copyright Infringement)
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`29. Wixen realleges and incorporates herein by this reference each of the
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`allegations contained in Paragraphs 1 through 28 above as though fully set forth.
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`30. Wixen is the owner and/or exclusive licensee of the copyright in each
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`Work. Wixen’s exclusive rights include the rights to issue synchronization licenses
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`and to authorize the creation of derivative works.
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`31. Under Section 106 of the Copyright Act, 17 U.S.C. § 106, Wixen has
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`the exclusive rights, among others, to reproduce and distribute each Work, and to
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`permit the creation of derivative works incorporating each Work, as well as the
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`right to authorize others to exercise any of these rights.
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`COMPLAINT FOR COPYRIGHT INFRINGEMENT
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`CASE NO.
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`- 9 -
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`32. Triller has infringed many of the exclusive rights set forth in 17 U.S.C.
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`§ 106. Among other things, Triller has made unauthorized reproductions, including
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`in synchronization with videos; engaged in unauthorized distribution of the
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`copyrighted Works; engaged in the unauthorized creation of derivative works; and
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`publicly performed the Works. Such conduct constitutes copyright infringement
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`pursuant to 17 U.S.C. §§ 106 et seq.
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`33. Each Work is an original work fixed in a tangible medium of
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`expression and is a copyrightable subject matter within the meaning of Section 102
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`of the Copyright Act.
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`34. Each Work reproduced by Triller and/or made accessible by Triller to
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`its users constitutes a separate and distinct act of infringement. In addition, Triller’s
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`reproduction and distribution of each Work in its music library and its promotional
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`materials, including Triller playlists, constitutes a separate and distinct act of
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`infringement, for which Triller is a direct infringer.
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`35. Triller’s conduct has at all times been willful, intentional, purposeful,
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`and in disregard of and indifferent to the rights of Wixen.
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`36. As a direct and proximate result of Triller’s willful and infringing
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`conduct, Wixen is entitled to actual damages, including the profits of Triller, as will
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`be proven at trial, pursuant to 17 U.S.C. § 504(b). Among other damages, Triller’s
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`unlawful actions harm the value of the Works to legitimate licensees of Wixen,
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`including Triller’s rival, TikTok.
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`37.
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`In the alternative, pursuant to 17 U.S.C. § 504(c), Wixen is entitled to
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`receive the maximum amount of statutory damages for willful copyright
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`infringement of $150,000 per work infringed, for the sum of at least for the sum of
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`at least $50,400,000, as will be proven at trial.
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`38. Wixen is further entitled to recover its attorneys’ fees and costs
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`pursuant to 17 U.S.C. § 505.
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`///
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`COMPLAINT FOR COPYRIGHT INFRINGEMENT
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`CASE NO.
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`- 10 -
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`Case 2:20-cv-10515-JVS-AFM Document 1 Filed 11/17/20 Page 11 of 15 Page ID #:11
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`39. Triller’s acts, including its failure to develop and implement
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`procedures to properly license compositions, have caused and will continue to
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`cause irreparable harm and injury to Wixen and the songwriters it represents, for
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`which they have no adequate remedy at law. Wixen is therefore entitled to an
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`injunction pursuant to 17 U.S.C. § 502 to prevent and restrain Triller’s ongoing
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`copyright infringement.
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`SECOND CLAIM FOR RELIEF
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`(Contributory Copyright Infringement)
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`40. Wixen realleges and incorporates herein by this reference each of the
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`allegations contained in Paragraphs 1 through 39 above as though fully set forth.
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`41. Wixen is informed and believes and thereon alleges that Triller has had
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`knowledge of and/or reckless disregard for the infringing activities of its users, and
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`induced, caused, or materially contributed to its users’ infringing conduct. Triller is
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`therefore contributorily liable for each such act of infringement of the Work under
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`17 U.S.C. §§ 106 and 501.
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`42. Wixen is informed and believes and thereon alleges that Triller
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`knowingly and materially contributed to the infringement by facilitating and/or
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`providing a platform for its users to make unauthorized reproductions and
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`derivative works, and to engage in the unauthorized distribution of the copyrighted
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`Works, the unauthorized creation of derivative works, the unauthorized public
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`performance of the Works, and the unauthorized creation of derivative works. On
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`information and belief, Triller intends, encourages, and induces its users to use the
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`Works in these ways.
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`43. Wixen is informed and believes and thereon alleges that Triller has
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`taken affirmative steps to cause, induce, and materially contribute to the direct
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`infringement of Wixen’s copyrighted Works by falsely representing that it has had
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`any right to license, reproduce, distribute, or otherwise exploit the Works in any
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`///
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`COMPLAINT FOR COPYRIGHT INFRINGEMENT
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`CASE NO.
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`- 11 -
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`

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`Case 2:20-cv-10515-JVS-AFM Document 1 Filed 11/17/20 Page 12 of 15 Page ID #:12
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`way, and by facilitating or providing its users the opportunity to reproduce,
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`distribute, or otherwise exploit the Works on its App.
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`44. Triller is aware that it lacks any rights in and to the Works and that its
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`users are unlawfully reproducing, distributing, and publicly performing the Works
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`on its App.
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`45. Triller’s aforesaid acts of contributory infringement are knowing,
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`willful, intentional, purposeful, and in disregard of Wixen’s exclusive rights.
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`46. As a direct and proximate result of the contributory infringements by
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`Triller, Wixen is entitled to actual damages, including the profits of Triller, as will
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`be proven at trial, pursuant to 17 U.S.C. § 504(b).
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`47.
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`In the alternative, pursuant to 17 U.S.C. § 504(c), Wixen is entitled to
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`receive the maximum amount of statutory damages for willful copyright
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`infringement, $150,000 per video, as will be proven at trial.
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`48. Wixen is further entitled to recover its attorneys’ fees and costs
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`pursuant to 17 U.S.C. § 505.
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`49. As a direct and proximate result of the foregoing acts and conduct,
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`Wixen and the songwriters it represents have suffered and will continue to suffer
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`irreparable harm and injury, for which they have no adequate remedy at law. Wixen
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`is therefore entitled to an injunction pursuant to 17 U.S.C. § 502 to prevent and
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`restrain Triller’s ongoing copyright infringement, including ordering Triller to
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`develop and implement procedures to comply with the Copyright Act.
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`PRAYER FOR RELIEF
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`WHEREFORE, Wixen seeks relief as follows:
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`As to Claim for Relief I:
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`1.
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`An award of damages pursuant to 17 U.S.C. § 504(b), including actual
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`damages, inclusive of the injury to the market value of Wixen’s copyrights in the
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`Works, and the profits of Triller that are not taken into account in computing the
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`actual damages, as will be proven at trial, or, in the alternative, the maximum
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`
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`COMPLAINT FOR COPYRIGHT INFRINGEMENT
`
`CASE NO.
`
`- 12 -
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`Case 2:20-cv-10515-JVS-AFM Document 1 Filed 11/17/20 Page 13 of 15 Page ID #:13
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`amount of statutory damages pursuant to 17 U.S.C. § 504(c), $150,000 per
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`infringement, as will be proven at trial;
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`2.
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`Injunctive and/or declaratory relief as is necessary to protect the
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`interests of Wixen pursuant to 17 U.S.C. § 502, including requiring Triller to
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`(a) develop and implement procedures for identifying and properly licensing songs
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`and (b) pay for the services of a third party auditor to identify the owners of songs
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`reproduced and/or distributed by Triller despite Triller’s failure to first obtain a
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`license prior to reproducing and/or distributing the Works;
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`3.
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`Attorneys’ fees and costs pursuant to 17 U.S.C. § 505 and under other
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`applicable law;
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`4.
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`5.
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`Pre- and post-judgment interest to the extent allowable; and
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`Such other and further relief that the Court may deem just and proper.
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`As to Claim for Relief II:
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`1.
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`An award of damages pursuant to 17 U.S.C. § 504(b), including actual
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`damages, inclusive of the injury to the market value of Wixen’s rights in each Work,
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`and the profits of Triller that are not taken into account in computing the actual
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`damages, as will be proven at trial, or, in the alternative, the maximum amount of
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`statutory damages pursuant to 17 U.S.C. § 504(c), of $150,000 per infringement, as
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`will be proven at trial;
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`2.
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`Injunctive and/or declaratory relief as is necessary to protect the
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`interests of Wixen pursuant to 17 U.S.C. § 502;
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`3.
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`Attorneys’ fees and costs pursuant to 17 U.S.C. § 505 and under other
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`applicable law;
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`4.
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`Pre- and post-judgment interest to the extent allowable; and
`
`///
`
`///
`
`///
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`///
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`COMPLAINT FOR COPYRIGHT INFRINGEMENT
`
`CASE NO.
`
`- 13 -
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`

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`Case 2:20-cv-10515-JVS-AFM Document 1 Filed 11/17/20 Page 14 of 15 Page ID #:14
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`5.
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`Such other and further relief that the Court may deem just and proper.
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`Dated: November 17, 2020
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`
`DONAHUE FITZGERALD LLP
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`By:
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`/s/Andrew S. MacKay
`Andrew S. MacKay
` Attorneys for Plaintiff
` WIXEN MUSIC PUBLISHING, INC.
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`COMPLAINT FOR COPYRIGHT INFRINGEMENT
`
`CASE NO.
`
`- 14 -
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`

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`Case 2:20-cv-10515-JVS-AFM Document 1 Filed 11/17/20 Page 15 of 15 Page ID #:15
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`
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`Pursuant to Rule 38(b) of the Federal Rules of Civil Procedure, Wixen
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`DEMAND FOR JURY TRIAL
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`demands a trial by jury in this action.
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`Dated: November 17, 2020
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`
`DONAHUE FITZGERALD LLP
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`/s/Andrew S. MacKay
`Andrew S. MacKay
` Attorneys for Plaintiff
` WIXEN MUSIC PUBLISHING, INC.
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`By:
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`COMPLAINT FOR COPYRIGHT INFRINGEMENT
`
`CASE NO.
`
`- 15 -
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