The opinion of the court was delivered by: Ramon E. Reyes, Jr., U.S. Magistrate Judge
Plaintiffs Seoul Broadcasting System International, Inc. ("SBS") and
Mun Hwa Broadcasting Corporation ("MBC") (collectively, "Plaintiffs")
brought this action against defendants John Kim Sang ("Sang"), an
individual doing business as Eden Video, Hwa Sook Kim,*fn1
Jong Sook Kim, Hakyeoul Jang, and various John
Does,*fn2 alleging that they violated the Copyright
Act of 1976, 17 U.S.C. §§ 101, et seq. ("the Act") by engaging in
unauthorized reproduction, rental, and sale of Plaintiffs' copyrighted
television programs. Plaintiffs filed the
instant motion for summary judgment against Sang on May 28, 2010,
which was fully briefed July 1, 2010. (Docket Nos. 21-25.) The motion
is before me on consent of the parties. (Docket No. 17.)
For the reasons herein, Plaintiffs' motion for summary judgment is granted in part and denied in part.
SBS and MBC own registered copyrights for numerous works, particularly serialized television dramas. (See Plaintiffs' Statement Pursuant to Local Rule 56.1 ("Pl. 56.1 Stmnt"), dated May 28, 2010, ¶¶ 1-2; Memorandum in Support of Plaintiff's Motion for Summary Judgment ("Pl. Mem."), dated May 28, 2010, at 1.) Sang has been the owner of Eden Health Food ("Eden") in Staten Island since August 2008. (Declaration in Opposition to Motion for Summary Judgment ("Sang Decl."), dated June 11, 2010, ¶ 3; Pl. 56.1 Stmnt ¶¶ 3,4.) Eden was a video store before Sang acquired the property and converted it into a health food store. (Sang Decl. ¶¶ 3, 5-6.) Although Eden's primary source of revenue under Sang's management is from food sales, Eden continued to rent and sell DVDs leftover from the previous occupant, in addition to newly acquired DVDs from August 2008 until this lawsuit was filed. (Sang Decl. ¶¶ 6-11; Pl. 56.1 Stmnt ¶¶ 13-17.) Each DVD contained two shows or episodes, and Sang sold,rented or copied approximately 20 DVDs per week. (Pl. 56.1 ¶¶ 21, 22; Exh.*fn4 C and D ¶ 21.) Plaintiffs sent an investigator to Eden in April 2009, where he purchased three DVDs with the following episodes of Plaintiffs shows: (1) SBS's "The Family of Honor, Episode 1"; (2) MBC's "East of Eden, Episode 1"; and (3) MBC's "Beethoven Virus, Episode 1." (Pl. 56.1 Stmnt ¶ 23; Exh. G ¶ 2.)
Sang admits that he was aware of prior licensing agreements between SBS and MBC and the pre-existing video store, under which the previous owners received DVDs of SBS and MBC copyrighted television shows, and were permitted to make copies, rent and sell the DVDs. (Exh. C and D, ¶¶ 5-7.) Sang was also aware that the prior licenses terminated, and admits that he engaged in discussions with Plaintiffs regarding the acquisition of a license; the parties, however, never entered a licensing agreement authorizing Sang to reproduce, sell, or rent the Plaintiffs' works. (Id. at ¶¶ 9-11.) Sang acknowledges that he obtained and reproduced Plaintiffs' works from third parties, and rented or sold copies of those works. (Id. at ¶¶ 12-14.) Sang also admists that he received, but ignored cease-and-desist letters from Plaintiffs prior to the commencement of this action. (Id. at ¶¶ 15-16.)
Sang does not dispute any of the foregoing, or even that his conduct infringed Plaintiffs' copyrights. He contests, however, the extent of damages requested by Plaintiffs as excessive. Sang contends that only five percent (5%) of Eden's floorspace was devoted to DVD sales, and that accordingly, DVD sales accounted for almost negligible profits. (Sang Decl. ¶¶ 7, 12.) Sang further proffers that the only reason he continued to sell Plaintiffs' works was as an additional service to his Korean clientele. (Id. at ¶ 13.) Moreover, Sang contends that the profits from the sales of Plaintiffs' DVDs would not even have covered the proposed licensing fees, and therefore, that his activities did not cause Plaintiffs' any appreciable damages. (Id. at ¶¶ 15, 17.)
I. Summary Judgment Standard
Under Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment is properly granted where "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a).*fn5 A genuine dispute as to a material fact is a dispute which "could reasonably be resolved in favor of either party," Andersonv. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986), and which must be resolved to apply the relevant substantive law, id. at 248. The moving party has the burden of establishing "the absence of a genuine" dispute. Celotex Corp. v. Catrett, 447 U.S. 317, 323 (1986). Moreover, all facts and inferences should be viewed in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
II. Copyright Infringement
Section 501 of the Act recognizes a copyright owner's private right of action against "[a]nyone who violates any of the exclusive rights of the copyright owner as provided by sections 106 through 108" of the same. 17 U.S.C. § 501(a). Section 106 provides for the copyright owner's exclusive rights (among others) to reproduce or "distribute copies . . . of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending . . . ." 17 U.S.C. 106 (1), (3).
To establish liability for copyright infringement, "two elements must be proven: (1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original." Arista Records LLC v. Doe, 604 F.3d 110, 117 (2d Cir. 2010) (quoting Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340, 361 (1991). "'The word 'copying' is shorthand for the infringing of any of the copyright owner's five exclusive rights' described in § 106." Id. (quoting A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1013 (9th Cir.2001)).
It is undisputed that the Plaintiffs are the owners of valid copyrights for at least three television episodes at issue in this case. (See Pl. 56.1 Stmnt. ¶¶ 1, 2, 23.) Accordingly, the first element of the prima facie case has been established. Second, that Sang engaged in unauthorized copying of Plaintiffs' protected works is overwhelmingly apparent on the basis of Sang's own admissions. Indeed, Sang admits to having copied and distributed Plaintiffs' works without a licensing agreement. Moreover, Plaintiffs' investigator actually purchased three of Plaintiffs' works from Sang. Therefore, there is no genuine dispute as to ...