Wixen v Triller: Music Apps Need to License the Songs
by Susan Basko, esq.
Wixen Music Publishing has filed a lawsuit against the Triller app claiming the songs Wixen controls have been infringed by Triller. Triller is an app run by CEO Mike Lu. The app allows users to create 15-second music videos and share them with friends and contacts within the app. The app makes many songs availavle to the users for use in the videos. Some of those songs are controlled by Wixen. Triller allows its users to choose a song, choose which 15 seconds of the song to use, and to make a little music video.
Wixen is run by Randall Wixen, who is one of my personal longstanding music heroes. Randall Wixen came into music publishing as an accountant who would collect the publishing money owed and take a percentage. This differs from the traditional music publisher, which usually takes 50% of the publishing rights and notoriously does almost nothing to earn it. At the time Wixen started, his service was groundbreaking and a cure for the traditional music publishing grab that robbed so many songwriters. This is how and why Wixen has an impressive A-list of songwriters who sign with the company to have their money collected at an affordable price. These are veteran songwriters who do not need any "help" getting their songs out there. The Wixen Publishing Client List of over 2,000 songwriting music artists includes Tom Petty, Rage Against the Machine, Santana, Andrew Bird, Neil Young, The Doobie Brothers, Barry Mann and Cynthia Weil, The Doors, The Beach Boys, Steven Stills, Stevie Ray Vaughan.
By US Copyright law, use of a song in a motion picture, including a music video, requires a Synch license from the publisher, as well as a Master's Use license from the owner of the copyright on the Sound Recording, which is usually a record label. This lawsuit does not address the Master's Use license, because Wixen is a music publisher, not a record label. I don't know if the song recordings used by Triller are original recordings owned or controlled by record labels, or if perhaps Triller has had sound-alike recordings made. In either case, this particular lawsuit only deals with the publishing, by which is meant the songwriting, not the sound recording. Songs have two copyrights -- the songwriting and the sound recording. The songwriting copyright is usually controlled by a publisher, and will remain constant no matter which musicians have created a particular recording. If Triller has used sound recordings without getting a Master's Use license, then it is possible there will be other lawsuits filed by record labels.
Over the years, I have watched a good number of music start-ups fail and have to close up, and most of those were at least in part due to their lack of understanding of music law and /or their failure to get proper licensing for the music. Music law is complex and most people do not understand it. Further, music licensing is a gigantic, expensive pain.
What makes music licensing such a pain? First, there is no real central database that lists who controls what songs. There are a mishmash of databases and they can be helpful, but there is no centralized registry. Second, a song may have multiple songwriters, and each one may be represented by a different publisher, and by different publishers in different nations. Third, since songwriters can move their songs from publisher to publisher, what is true one year may not be true the next. Further, publisher merge, get bought up, go out of business, etc. Songwriters die and their estates take over, and often the legal status of the publishing will be tenuous at best.
So, let's say you have discovered which publishers control the songwriting / publishing rights to a song. Let's say you eagerly want to get a synch license to use the song in a video. Well, the publisher can say yes or say no, and they can even say nothing if they see you request as unworthy of a response. Publishers always want to know a lot of information before granting a synch license, including which part of the song will be used in the motion picture, what the film or video will be like, who is producing and directing and starring in it, where it will be shown, how long it will be shown there, how many people will see it, and what the overall budget is and what the music budget is. If the publisher grants the synch license, it can set any price and any terms it likes.
With all that, how does an app negotiate to get synch licenses for thousands of songs, to be used in any way that the app users wish to use them? As you see in this lawsuit, the easiest way is to skip getting synch licenses and deal with the consequences as they come. Maybe that's not such a great idea. Maybe music publishers should wake up and make themselves and the music they represent more available and affordable. Use of a song in a video, even an amateur or fan music video, is good free publicity for the song -- usually, not always. Sometimes a video can harm a song or do things the songwriter does not like, and that is one of the many reasons why publishers require information about the video before granting a synch license.
Bulk licensing is possible, but a publisher rarely wants to deal with a music start-up company, with its finances as shaky as its reputation and future. This is why, it seems, many music tech start-ups choose to ignore the complexities of music licensing. The Wixen lawsuit complaint states, "The President and CEO of the National Music Publishers’ Association (NMPA), a trade group to which Wixen belongs, criticized Triller for not fully licensing NMPA members’ songs, stating that “Triller’s popularity is largely based on music. It boasts ‘millions of songs at your fingertips,’ however many of those songs have not been properly licensed. The pattern of tech platforms asking for forgiveness instead of permission to use songwriter’s work must stop. Triller must legitimize its business by properly licensing all music on its platform.”
However, there are reasons that "tech platform" ask "for forgiveness instead of permission to use (a) songwriter's work." Those reasons, I think are lack of understanding of music law, lack of access to a music lawyer, lack of financial resources in the start-up phase of a company, and complexity in getting synch licensing and Master's Use licensing.
Wixen's complaint hopes to dispel any notion that Triller was unable to afford synch licensing by alleging that Triller has been lavishing money on its social media influencers. "However, rather than pay Wixen and the songwriters Wixen represents to use their Works, Triller pays “social influencers” substantial sums of money and provides them with Rolls Royces, mansions (with housekeeping), weekly sushi dinners at Nobu, and, in at least one instance, a helicopter." This is a no-go with Randall Wixen, who has built his business on being impeccably fair with his roster of songwriters.
Wixen Publishing's website has a page called "How to Clear Music." It includes a list of "How Not to Clear Music," which includes the admonition, "Don't chat up the receptionist." None of this list (below) sounds like Wixen is open to negotiating with a music start-up for synch licensing of its songs en mass. To the contrary, this all sounds intimidating, foreboding, and expensive. Nothing says a music publisher has to be open to working with music apps or social media. But, those platforms are the present and future of music, so it would seem a good idea to get on board with the things that music lovers enjoy today. Just sayin', it might be more productive than filing lawsuits after the fact.
This music street runs both ways and there is enough fault going around for everyone to take their share. A songwriter and their music publisher do legally own the rights and control what can be done with their songs. But it is the music fans who have made the songs what they have become. Rejecting tech and social media platforms or making it nearly impossible for them to use music is the historical equivalent to if songwriters had refused to allow their songs to be played on a Victrola or record player, or on the new-fangled radio. Music is being used in new ways, giving the fans the ability to create their own video media. Will music publishers remain in their castle towers surrounded by a moat -- and don't chat up the receptionist on the way into the castle, please -- or will they get with the times? This remains to be seen.
A lawsuit such as this one filed by Wixen is enough to financially kill off a platform like Triller. I have seen many a music start-up killed off by the expense and demands of music licensing. Will Triller and Wixen be able to work out a deal? We'll all find out.
HOW TO CLEAR MUSIC