Beom Su Lee v. 162 D&Y Corp.

• Decision Date: 30 December 2022
• Docket Number: 18-cv-02580 (BC)(PK)
• Citation: Beom Su Lee v. 162 D&Y Corp., 18-cv-02580 (BC)(PK) (E.D. N.Y. Dec 30, 2022)
• Court: U.S. District Court — Eastern District of New York
• Parties: BEOM SU LEE, Plaintiff, v. 162 D&Y CORP, d/b/a FLOWER KARAOKE, YS HAPPY CORP, d/b/a HAPPY KARAOKE, HARMONY KARAOKE KTV, INC, d/b/a HARMONY KARAOKE, OPEN KARAOKE CORP, d/b/a YUL LIN KARAOKE, CHRISTMAS KARAOKE, LALALA OF NY, INC, d/b/a FANTAZIA, SAGWANAMOO, INC, d/b/a SAKWANAMU, BOOMERANG II INC, d/b/a BOOMERANG,JKK ONE, INC, d/b/a CARAMEL, GOMUNAMU, INC, d/b/a SENSE, SONAKI GROUP INC, d/b/a TOMATO, NEW MI GOONG CORP, d/b/a ALL IN, SOMETHING 1, INC, d/b/a SOMETHING ONE INC,, YS2 ENTERPRISES INC, d/b/a CEO BUSINESS CLUB, Defendants,

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BEOM SU LEE, Plaintiff, v. 162 D&Y CORP, d/b/a FLOWER KARAOKE, YS HAPPY CORP, d/b/a HAPPY KARAOKE, HARMONY KARAOKE KTV, INC, d/b/a HARMONY KARAOKE, OPEN KARAOKE CORP, d/b/a YUL LIN KARAOKE, CHRISTMAS KARAOKE, LALALA OF NY, INC, d/b/a FANTAZIA, SAGWANAMOO, INC, d/b/a SAKWANAMU, BOOMERANG II INC, d/b/a BOOMERANG,JKK ONE, INC, d/b/a CARAMEL, GOMUNAMU, INC, d/b/a SENSE, SONAKI GROUP INC, d/b/a TOMATO, NEW MI GOONG CORP, d/b/a ALL IN, SOMETHING 1, INC, d/b/a SOMETHING ONE INC,, YS2 ENTERPRISES INC, d/b/a CEO BUSINESS CLUB, Defendants,

No. 18-cv-02580 (BC)(PK)

United States District Court, E.D. New York

December 30, 2022

REPORT AND RECOMMENDATION

PEGGY KUO, UNITED STATES MAGISTRATE JUDGE:

The Court having reviewed this Report and Recommendation [20] de novo, having determined that its reasoning and conclusions are correct, and having received no objection from defendants, the Report and Recommendation is ADOPTED as the decision of this Court, and plaintiff's motion for a default judgment [15] is granted. The Court will enter judgment separately.

SO ORDERED:

On April 30, 2018, Beom Su Lee (“Plaintiff') brought this action against 162 D&Y Corp, (d/b/a Flower Karaoke) (“Flower Karaoke”), Harmony Karaoke KTV Inc (d/b/a Harmony Karaoke) (“Harmony Karaoke”), Open Karaoke Corp, (d/b/a Yul Lin Karaoke) (“Yul Lin Karaoke”), Lalala of NY, Inc, (d/b/a Fantazia) (“Fantazia”), JKK One Inc, (d/b/a Caramel) (“Caramel”), Gomunamu, Inc, (d/b/a Sense) (“Sense”), Sonaki Group Inc, (d/b/a Tomato) (“Tomato”), Something 1, Inc, (d/b/a Something One, Inc,) (“Something One, Inc,”), and YS2 Enterprises Inc, (d/b/a CEO Business Club) (“CEO Business Club”) (collectively “Defendants”), alleging that these karaoke establishments engaged in copyright infringement under the Copyright Act of 1976, 17 U.S.C. §§ 101 et seq. (the “Copyright Act”).^[1] (See Compl. Dkt. 1.) Plaintiff now brings a Motion for Default Judgment against Defendants (“Motion,” Dkt. 115). which the Honorable Brian M. Cogan has referred to me for a Report and Recommendation. For the reasons stated below, I respectfully recommend that the Motion be granted and damages be awarded as detailed below.

BACKGROUND

I. Factual Background

Plaintiff is the fourth son of Jae Ho Lee, a well-known and prolific Korean composer. (Compl. ¶ 6 at 2-3); see also Su Lee v. Flower Karaoke, No. 18-CV-2580 (BMC)(PK), 2019 WL 1597309. at *1 (E.D.N.Y. Apr. 15, 2019) [hereinafter Flower Karaoke] (summarizing facts set forth in the Complaint and incorporated exhibits). Upon Jae Ho Lee's death in 1960, the South Korean copyrights of his songs were inherited by his surviving family. (Compl. ¶8at 3.) Through assignments from Plaintiff s mother and older brother, Plaintiff became the exclusive owner of the copyrights. (Id. at ¶ 8 at 3.) Plaintiff currently holds the copyright of his father's musical works, as reflected by U.S. Copyright Certificate TX5-432-807 issued in 2001. (“Certificate,” Ex. 1 to Compl. at 15 (ECF pagination), Dkt. 1.) This registration covers Jae Ho Lee's copyrighted 125 musical works under the title, “The Collection of Lee, Jae Hos Compositions.” (Id.)

In April 2018, Plaintiff found that karaoke rooms operated by Defendants contained TJ Media Karaoke machines, which “recorded and contained” 42 of Jae Ho Lee's copyrighted songs. (Compl. ¶¶ 10-11, at 4; “Inquest Answers” at 1, Dkt. 117; Inquest Transcript (“Tr.”) 3:19-4:1, 4:23-25, Dkt. 119.)

Customers pay to access the karaoke rooms, which are equipped with a karaoke machine, big screen and songbook listing songs from the machine. (Compl. ¶ 12 at 4.) Defendants charged an hourly fee based on the number of guests, with food and drinks charged separately. (Id. at ¶ 12 at 4-5.) Plaintiff was unable to access some of the karaoke rooms because they were expensive. (Id. at ¶ 14 at 5.)

Plaintiff went to Defendants Flower Karaoke, Harmony Karaoke, and Yul Lin Karaoke and made video recordings of songs playing on screens inside the karaoke rooms of those establishments, which he submitted as Exhibit 4 to the Complaint. (See Declaration in Support of Exhibit 4 to Compl. (“Ex. 4 Deck”), Dkt. 38.) Plaintiff submitted a Declaration stating that Exhibit 4 contains 10 videos and 6 photos of the copyrighted works being played on TJ Media Karaoke machines inside Flower Karaoke (see id. at ¶ 4), 19 videos of the copyrighted works being played on TJ Media Karaoke machines inside Harmony Karaoke (id. at ¶ 5), and 17 videos of the copyrighted works being played on TJ Media Karaoke machines inside Yul Lin Karaoke. (Id. at ¶ 6.) Plaintiff also visited Defendants Fantazia, Caramel, Tomato, Sense, and Something One, Inc. and was told by employees and managers at those establishments that they used TJ Media Karaoke machines. (Id. at ¶ 8.)

After the Complaint was filed, Plaintiff requested and was granted permission to inspect Defendants Caramel, Tomato, CEO Business Club, Sense, Fantazia, and Something One, Inc. (Minute Entry dated May 29, 2019, Dkt. 61.) Defendants were instructed to provide Plaintiff with access to their establishments for at least 30 minutes free of charge. (Id.) Plaintiff visited Caramel, Tomato, CEO Business Club, and Sense and made video recordings of the copyrighted songs playing inside those establishments. (See Plaintiff s Exhibit 24 in Support of Compl. (“Pl. Ex. 24”), Dkt. 64.) Plaintiff submitted the videos as Exhibit 24 to the Complaint.^[2] In the videos, Plaintiff is not singing, but the songs are audible, and the lyrics are visible on the screen. Plaintiff submitted a letter in which he asserted that the recorded songs are part of the copyrighted work and provided the TJ Media Karaoke machine song numbers for the songs. (See id.) Plaintiff was unable to visit Fantazia and Something One, Inc. because Fantazia had closed and Something One, Inc. had changed its name. (Id. at 1.)

None of the Defendants have licenses, authorization, or permission to use the copyrighted songs. (Compl. ¶ 17 at 6.)

II. Procedural Background

Defendants filed Answers to the Complaint on April 29, 2019. (Dkts. 45-48, 50, 52-55.)

On March 25, 2020, Plaintiff filed a motion for summary judgment. (Dkt. 76.) Defendants filed their opposition on June 23, 2020. (Dkt. 81.)

On July 29, 2021, Defendants' attorney Soohyun Kim filed a motion to withdraw as counsel. (Dkt. 100.) A hearing was held by telephone on August 12, 2021. (See Minute Entry and Order dated Aug. 12, 2021.) Although Defendants were notified of the hearing and ordered to have representatives present (see Scheduling Order dated July 30, 2021), none appeared. (See Minute Entry and Order dated Aug. 12, 2021.) During the hearing, Kim stated that he was no longer in contact with Defendants and that they had not responded to his emails or calls. (Id.) The Court granted Kim's motion and ordered Defendants to obtain new counsel no later than September 13, 2021. (Id.) Defendants were warned that if they failed to obtain counsel, they would be in default, as a corporation may only appear through counsel. (Id.)

On August 23, 2021, the Court issued a Scheduling Order for a motion hearing by telephone on Plaintiff s motion for a proposed temporary injunction and impound request to be held on October 1, 2021; it also reminded Defendants that they must obtain new counsel by September 13, 2021 or they would be in default. (Scheduling Order dated Aug. 23, 2021.) On August 24, 2021, the Clerk of Court mailed copies of the Scheduling Order to Defendants at their respective addresses. A copy of the Court's Scheduling Order was returned as undeliverable to Defendants Fantazia and Something One, Inc. (See Dkt. 105.)

No new counsel entered an appearance.

On October 1, 2021, none of the Defendants appeared at the telephone conference or informed the Court that they had obtained new counsel. (Minute Entry and Order dated Oct. 1, 2021.) Defendants were again warned in a written order that if they did not appear at the next conference, scheduled for October 22, 2021, default may be entered against them. (Id.) Defendants failed to appear at the conference on October 22, 2021 or obtain new counsel. (Minute Entry dated Oct. 22, 2021.)

On November 23, 2021, Plaintiff sought a Certificate of Default against Defendants. (Dkt. 112.) The Clerk entered the Defendants' default on December 14, 2021. (“Entry of Default,” Dkt. 113.) Thereafter, the Court struck Defendants' Answers and denied Plaintiff s pending motion for summary judgment as moot. (Order dated Dec. 15, 2021.) Plaintiff filed the Motion for Default Judgment on January 3, 2022. (See Memorandum in Support of the Motion for Default Judgment (“Mem. in Sup.”), Dkt. 115-1.)

On April 21, 2022, the Court scheduled an inquest by telephone to be held on May 23, 2022. (Scheduling Order dated Apr. 21, 2022). The Clerk of Court mailed copies of the Scheduling Order to Defendants on April 25, 2022 notifying them of the inquest. Plaintiff submitted written responses to the Court's questions in anticipation of the inquest. (Inquest Answers.) On May 23, 2022, the Court held the inquest by telephone. (See Minute Entry dated May 23, 2022; Tr.) Defendants did not appear. (See Minute Entry dated May 23, 2022.) After the inquest, Plaintiff made a supplemental filing in support of his Motion. (See Dkt. 118.)

DISCUSSION

I. Default judgment Standard

Federal Rule of Civil Procedure 55 governs the procedure that applies when there is a default during litigation. See Fed.R.Civ.P. 55; see also City of N.Y. v Mickalis Pawn Shop, LLC, 645 F.3d 114, 128 (2d Cir. 2011). It “provides a ‘two-step process' for the entry of judgment against a party who has failed to defend . . . .” Mickalis, 645 F.3d at 128; see also GuideOne Specialty Mut. Ins. Co. v. Rock Cmty. Church, Inc., 696 F.Supp.2d...