djerrahan v. bet - bet motion for more definitive statements.pdf

5
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ARMEN DJERRAHIAN, Plaintiff, -against- BLACK ENTERTAINMENT TELEVISION, LLC, Defendant. Civil Action No. 14 CV 8511 (JPO) (GWG)  ________ __ DEFENDANT’S MOTION FOR A MORE DEFINITE STATEMENT PURSUANT TO RULE 12(e) OF THE FEDE RAL RULE S OF CIVIL PROCEDURE  ________ __ FOX ROTHSCHILD LLP 100 Park Avenue, 15 th Floor  New York, NY 10 017 Tel: (212) 878-7900 Fax: (212) 692-0940 Attorneys for Defendant, Black Entertainment Television LLC Case 1:14-cv-08511-JPO Document 9 Filed 12/12/14 Page 1 of 5

Upload: mark-h-jaffe

Post on 02-Jun-2018

223 views

Category:

Documents


0 download

TRANSCRIPT

Page 1: Djerrahan v. BET - BET motion for more definitive statements.pdf

8/10/2019 Djerrahan v. BET - BET motion for more definitive statements.pdf

http://slidepdf.com/reader/full/djerrahan-v-bet-bet-motion-for-more-definitive-statementspdf 1/5

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK 

ARMEN DJERRAHIAN,

Plaintiff,

-against-

BLACK ENTERTAINMENT TELEVISION, LLC,

Defendant.

Civil Action No. 14 CV 8511(JPO) (GWG)

 ______________________________________________________________________________ 

DEFENDANT’S MOTION FOR A MORE DEFINITE STATEMENT PURSUANT TO

RULE 12(e) OF THE FEDERAL RULES OF CIVIL PROCEDURE

 ______________________________________________________________________________ 

FOX ROTHSCHILD LLP100 Park Avenue, 15

thFloor 

 New York, NY 10017

Tel: (212) 878-7900Fax: (212) 692-0940

Attorneys for Defendant,

Black Entertainment Television LLC

Case 1:14-cv-08511-JPO Document 9 Filed 12/12/14 Page 1 of 5

Page 2: Djerrahan v. BET - BET motion for more definitive statements.pdf

8/10/2019 Djerrahan v. BET - BET motion for more definitive statements.pdf

http://slidepdf.com/reader/full/djerrahan-v-bet-bet-motion-for-more-definitive-statementspdf 2/5

2

Defendant Black Entertainment Television LLC (“BET” or “defendant”) submits this

memorandum of law in support of its motion for a more definite statement, pursuant to Rule

12(e) of the Federal Rules of Civil Procedure (“FRCP”), against plaintiff, Armen Djerrahian

(“Djerrahian” or “plaintiff”).

PRELIMINARY STATEMENT

Plaintiff Djerrahian filed his one count complaint for copyright infringement against BET

claiming that he is entitled to award of actual damages or, in the alternative, “maximum statutory

damages pursuant to 17 U.S.C. §504” and “costs and attorneys’ fees pursuant to 17 U.S.C.

§505.”

The Copyright Act is clear that plaintiff may not recover statutory damages or attorney's

fees for any alleged infringement “commenced” before the effective date of a copyright's

registration.   See 17 U.S.C. §412. Plaintiff alleges he registered his work – a photograph – on

December 25, 2013.   See   Exhibit 1, ¶15.1

The text of plaintiff’s complaint is silent as to when

the alleged infringement commenced, or when plaintiff had learned about the alleged

infringement by defendant. Such omissions are likely deliberate as plaintiff is well aware that he

cannot maintain his claims for statutory damages and attorneys’ fees. If, in fact, plaintiff’s vague

complaint provided the necessary facts and details, plaintiff’s claims under 17 U.S.C. §504 and

17 U.S.C. §505 for statutory damages and attorneys’ fees would be subject to dismissal.   See

Exhibit 2 (an audit log for the BET.com article “25 Best Twitter Moment of 2013” shows that

the Image was published on the website on December 12, 2013 and was removed on June 19,

2014).

1Exhibits 1-2 are attached to the Declaration of Oksana G. Wright, dated December 12, 2014.

Case 1:14-cv-08511-JPO Document 9 Filed 12/12/14 Page 2 of 5

Page 3: Djerrahan v. BET - BET motion for more definitive statements.pdf

8/10/2019 Djerrahan v. BET - BET motion for more definitive statements.pdf

http://slidepdf.com/reader/full/djerrahan-v-bet-bet-motion-for-more-definitive-statementspdf 3/5

3

As a result, as fully explained below, the Court should order plaintiff to provide a more

definite statement as to facts that support his entitlement to claimed statutory damages and

attorney’s fees, and if no facts exist then plaintiff should amend the complaint to delete his claim

to statutory damages and attorney’s fees.

STATEMENT OF FACTS

In his complaint, plaintiff alleges that on June 27, 2012 he shot a certain image of rap

music artist “Gunplay” (the “Image”).   See Exhibit 1, ¶11. Plaintiff further claims that “a portion

of such images were published in the August/September 2012 issue of Vibe Magazine.”   Id.   On

December 25, 2013 plaintiff allegedly registered the Image with the United States Copyright

Office. Exhibit 1, ¶15. Plaintiff claims that BET “has employed the [Image] on its website

without a license authorization or consent.”   Id., ¶32. Plaintiff does not mention when BET

allegedly used the Image on its website or when he learned about BET’s use of the Image.

In fact, the rest of the complaint provides irrelevant information about Gunplay (¶¶12,

16) and discusses the alleged “iconic” nature of the Image (¶¶17, 18, 20-22).

In his only cause of action for copyright infringement, plaintiff asks for an award of 

actual damages or, in the alternative, statutory damages or attorney’s fees.   Id., ¶66 and the

Wherefore Clause. However, plaintiff fails to plead facts that would support such a claim.

ARGUMENT

A motion for a definite statement is appropriate when plaintiff’s claims, as here, are

generalized and conclusory.   See Pelman ex rel. Pelman v. McDonald's Corp., 396 F.3d 508,

511, n.5 (2d Cir.2005) (“Although the district court ... dismissed [plaintiff’s] claims on the

ground that…[they]…were vague and conclusory ... the cure for such deficiencies, in a claim not

required to be plead with particularity, is a motion for a more definite statement under Rule 12(e)

Case 1:14-cv-08511-JPO Document 9 Filed 12/12/14 Page 3 of 5

Page 4: Djerrahan v. BET - BET motion for more definitive statements.pdf

8/10/2019 Djerrahan v. BET - BET motion for more definitive statements.pdf

http://slidepdf.com/reader/full/djerrahan-v-bet-bet-motion-for-more-definitive-statementspdf 4/5

4

... rather than dismissal.”). Plaintiff only alleges in conclusory fashion that he is entitled to

statutory damages and attorney’s fees. However, Plaintiff fails to allege any facts that would

support his claims under 17 U.S.C. §504 and 17 U.S.C. §505 to an award of such statutory

damages and attorneys’ fees. Specifically, plaintiff’s pleading lacks any information as to the

alleged date of infringement. Similarly, plaintiff does not provide any facts as to when he

discovered the alleged infringement.

Pursuant to 17 U.S.C. § 412, plaintiff may not recover statutory damages or attorney's

fees for any infringement “commenced” before the effective date of a copyright's registration.

See Troll Co. v. Uneeda Doll Co., 483 F.3d 150, 158 (2d Cir. 2007). The Second Circuit had

established that plaintiff cannot recover “statutory damages and attorney's fees for infringement

occurring after registration if that infringement is part of an ongoing series of infringing acts and

the first act occurred before registration.”   Id.   (citing Johnson v. Jones, 149 F.3d 494, 506 (6th

Cir. 1998) (holding that the purposes of section 412 “would be thwarted by holding that

infringement is ‘commenced’ for the purposes of § 412 each time an infringer commits another 

in an ongoing series of infringing acts”));  Steele v. Bell , No. 11 Civ 9343, 2014 WL 1979227, at

*8 (S.D.N.Y. Mar. 28, 2014) (“Repeatedly, these courts have concluded that ‘Section 412

imposes a bright-line rule, barring the recovery of statutory damages for infringement occurring

after registration if that infringement is part of an ongoing series of infringing acts and the first

act occurred before registration.”); Peterson v. Kolodin, No. 13 Civ. 793(JSR), 2013 WL

5226114, at *8 (S.D.N.Y. Sept. 10, 2013) (“[W]here the alleged infringement begins before

registration and continues after registration, statutory damages and attorney fees are still

unavailable.”); Silberman v. Innovation Luggage, Inc.,  No. 01 Civ. 7109(GEL), 2003 WL

1787123, at *9 (S.D.N.Y. Apr. 3, 2003) (“[A]s long as infringement commenced before the date

Case 1:14-cv-08511-JPO Document 9 Filed 12/12/14 Page 4 of 5

Page 5: Djerrahan v. BET - BET motion for more definitive statements.pdf

8/10/2019 Djerrahan v. BET - BET motion for more definitive statements.pdf

http://slidepdf.com/reader/full/djerrahan-v-bet-bet-motion-for-more-definitive-statementspdf 5/5

5

of registration, statutory damages and attorney's fees are barred even if infringement continued

after the date of registration.”).

Here, plaintiff provides no information—as he must—about the commencement of the

alleged infringement.

CONCLUSION

For the reasons stated in this memorandum of law, BET’s motion for a more definite

statement should be granted in its entirety.

Dated: December 12, 2014

 New York, New York FOX ROTHSCHILD, LLP

/s/ Oksana Wright ________________ 

Oksana Wright, Esq.100 Park Avenue, 15

thFloor 

 New York, NY 10017

Tel: (212) 878-7900

Fax: (212) 692-0940 ATTORNEYSFOR D EFENDANT :   BLACK 

ENTERTAINMENT TELEVISION LLC

Case 1:14-cv-08511-JPO Document 9 Filed 12/12/14 Page 5 of 5