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

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK
ARMEN DJERRAHIAN,
Plaintiff,

Civil Action No. 14 CV 8511

(JPO) (GWG)

-againstBLACK ENTERTAINMENT TELEVISION, LLC,

Defendant.

______________________________________________________________________________
DEFENDANTS MOTION FOR A MORE DEFINITE STATEMENT PURSUANT TO
RULE 12(e) OF THE FEDERAL RULES OF CIVIL PROCEDURE
______________________________________________________________________________

FOX ROTHSCHILD LLP

100 Park Avenue, 15th Floor
New York, NY 10017
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 2 of 5

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 plaintiffs 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, plaintiffs vague
complaint provided the necessary facts and details, plaintiffs 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).

Exhibits 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 3 of 5

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
attorneys fees, and if no facts exist then plaintiff should amend the complaint to delete his claim
to statutory damages and attorneys 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 BETs 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 attorneys 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 plaintiffs 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 [plaintiffs] 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)
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... rather than dismissal.). Plaintiff only alleges in conclusory fashion that he is entitled to
statutory damages and attorneys 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, plaintiffs 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
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of registration, statutory damages and attorney's fees are barred even if infringement continued
after the date of registration.).
Here, plaintiff provides no informationas he mustabout the commencement of the
alleged infringement.
CONCLUSION
For the reasons stated in this memorandum of law, BETs 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, 15th Floor
New York, NY 10017
Tel: (212) 878-7900
Fax: (212) 692-0940
ATTORNEYS FOR DEFENDANT: BLACK
ENTERTAINMENT TELEVISION LLC