The opinion of the court was delivered by: Joseph F. Bianco, District Judge
Plaintiff Yash Raj Films (USA), Inc. ("Yash Raj") brought this action, alleging that defendants had distributed unauthorized and infringing copies of motion pictures to which plaintiff owns the copyrights or exclusive rights under the copyrights, in violation of 17 U.S.C. §§ 106 and 501. Yash Raj moves for summary judgment, pursuant to Fed. R. Civ. P. 56, as against defendants Naseem Akhtar and Bobby Music Co. and Sporting Goods, Inc. ("Bobby Music"), regarding liability for copyright infringement, and requests an inquest to determine damages.*fn1 Defendant Akhtar cross-moves for summary judgment. For the reasons stated below, plaintiff's motion is granted, and defendant Akhtar's motion is denied. Accordingly, the Court enters a permanent injunction against defendants Bobby Music and Akhtar, as detailed at the conclusion of this Memorandum and Order, and also grants plaintiff's request for an inquest regarding damages, contingent on an application setting forth additional damages that plaintiff is entitled, beyond those already awarded by this Court.
The following facts are undisputed, unless otherwise indicated. Yash Raj is an Indian film producing company, which holds copyrights to numerous motion pictures. (Compl. ¶ 5.) Relevant to this action, they claim that they own the copyrights and other exclusive rights to eleven Indian motion pictures: "Chandni," "Deewane," "Dil to Pagal Hai," "Dilwale Dulhania Le Jayenge," "Dulhan Hum Le Jayenge," "Kabhi Kabhie," "Kuch Kuch Hota Hai," "Mohabbatein," "Rufugee," "Silsila," and "Zubeidaa." (See Declaration of Jawahar Sharma ("Sharma Decl.") ¶ 5, Ex. A.) Yash Raj has obtained Certificates of Copyright Registration ("Copyright Certificates") for ten of these eleven films from the United States Copyright Office. (See Sharma Decl., Ex. B.) With respect to the eleventh film, "Dulhan Hum Le Jayenge," Yash Raj has exclusive distribution rights in the United States, by contract.*fn2 (See id.) Among the rights retained by Yash Raj includes those which authorize them to distribute the films throughout the Untied States and Canada, in theaters, and in digital versatile disc ("DVD") format, as well as in VHS video cassette format.
Defendant Bobby Music was a retail business, which distributed films in VHS and DVD format, solely owned by defendant Akhtar, who is the sole shareholder of the business. (See Pl.'s Rule 56.1 Statement of Undisputed Facts ("Pl.'s 56.1 Stmt.") ¶ 5.)
Yash Raj hired investigators, which between October 28, 2001 and December 12, 2001, entered and obtained counterfeit and unauthorized copies of their films from Bobby Music Co., High-Tech Video, and Vijay Video.*fn3 (See Sharma Decl., Ex. E.) As a result of this investigation, Yash Raj obtained an Order of Seizure from the Honorable David G. Trager on December 17, 2001, which authorized plaintiff, with the assistance of the United States Marshals, to seize unauthorized DVDs and VHS copies from Bobby Music Co. (See Pre. Inj. at 2-3).*fn4 On December 19, 2001, in the course of executing the Seizure Order, approximately sixty-four video cassettes and twenty-nine DVDs containing unauthorized copies of plaintiff's films were seized from Bobby Music Co. (See id.; see also Pl.'s 56.1 Stmt. ¶ 12.) In addition to authorizing the seizure, the Order of Seizure required that defendant Akhtar appear in court and show cause as to why an injunction should not enter. (See Pre. Inj. at 1.) Defendant Akhtar failed to appear, and the Court thereafter entered an Order of Preliminary Injunction, dated January 7, 2002, enjoining him from:
reproducing, displaying, copying, compiling, and distributing unauthorized copies of motion pictures in which Plaintiff holds the copyrights and exclusive rights under copyright or otherwise infringing Plaintiff's copyrights in any manner whatsoever, and in any form, and from assisting, conspiring or authorizing any third person or party to reproduce, display, copy, compile and distribute unauthorized copies of motion pictures in which Plaintiff holds the copyrights or exclusive rights under the copyright, or otherwise infringe Plaintiff's copyrights in any manner whatsoever and in any form . . .
On November 16, 2002, while the case was pending, the New York City Police Department ("NYPD") conducted a raid at Bobby Music Co. Jawahar Sharma, Yash Raj's Head of Operations for North America, was present during the raid and seizure, and he identified unauthorized and counterfeit copies of Yash Raj films at the store. The films identified by Sharma were seized by the police. As a result of the NYPD seizure, plaintiff successfully moved for contempt against defendant Akhtar for violating the preliminary injunction, which is described infra in detail.
II. PROCEDURAL BACKGROUND
On April 21, 2006, Yash Raj filed a motion for summary judgment pursuant to Fed. R. Civ. P. 56 as against all defendants. Defendant Akhtar filed a cross-motion for summary judgment. During the pendency of this motion, plaintiff's motion for contempt as against Akhtar for violation of the Court's preliminary injunction was pending, and was referred to the Honorable Cheryl L. Pollak, United States Magistrate Judge, for a Report and Recommendation. By Report and Recommendation dated July 5, 2006, Judge Pollak recommended that Akhtar be found to have wilfully infringed plaintiff's copyrights, in violation of the preliminary injunction. Accordingly, Judge Pollak recommended that plaintiff's motion be granted, and that plaintiff should be awarded $330,000 in statutory damages, and should be awarded reasonable attorney's fees and costs, should plaintiff submit appropriate supporting records. Defendant Akhtar objected to the Report and Recommendation on July 17, 2006. By Order issued September 27, 2006, the Court found defendant Akhtar's objections to be without merit, and adopted the Report and Recommendation in full.
On March 24, 2006, after a briefing schedule had been established for the instant motion to dismiss, but prior to the filing of plaintiff's moving papers, counsel for Akhtar, Bobby Music Co. & Sporting Goods, Inc. ("Bobby Music"), High-Tech Video, Inc., Chohan, Gita Shah, Satnam Singh, Vijay Video, Inc., Vijendra Sheth, and Vijay Video made an application to withdraw as counsel for all defendants other than Akhtar and Bobby Music Co. & Sporting Goods, Inc. The basis for the withdrawal was counsel's assertion that he had been unable to reach or communicate with these defendants, and remained unpaid. On April 28, 2006, at the hearing held by Judge Pollak regarding the contempt motion, Judge Pollak granted the motion to withdraw as to some of the defendants, and reserved as to others.
Subsequently, on September 5, 2006, this Court held oral argument regarding the instant motion for summary judgment, in addition to considering defendant Akhtar's objections to Judge Pollak's Report and Recommendation addressing the civil contempt motion. At oral argument, it became apparent to the Court that all of the defendants for which counsel sought withdrawal did not have notice of plaintiff's motion for summary judgment, as counsel had been unable to communicate with them, which led to his withdrawal motion. Moreover, the Court noted the fact that plaintiff sought summary judgment against defendants Bharat Mehta and Media Dimensions, who had defaulted in answering the complaint, after their motion to dismiss for lack of personal jurisdiction was denied by Judge Trager by Memorandum and Order dated August 27, 2002. In fact, the only defendant who received notice and submitted a response, opposing the motion for summary judgment, was Akhtar. In light of these circumstances, plaintiff agreed to withdraw their summary judgment motion as to all defendants other than Akhtar and Bobby Music, and indicated that to the extent that they still seek relief as ...