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Yash Raj Films Inc. v. Rannade Corp.

May 17, 2007

YASH RAJ FILMS (USA) INC. PLAINTIFFS,
v.
RANNADE CORPORATION, JAYESH MODI, INDIVIDUALLY AND D/B/A VIJAY MUSIC CENTRE, MANISHA PATEL, INDIVIDUALLY AND D/B/A: VIJAY MUSIC CENTRE DEFENDANTS.



The opinion of the court was delivered by: John C. Lifland, U.S.D.J.

FINDINGS OF FACT AND CONCLUSIONS OF LAW RE: CONTEMPT AND AWARD OF DAMAGES

I. FINDINGS OF FACT

A. Stipulation of Settlement and Order entered October 9, 2002

1. Defendants Rannade Corporation ("Rannade"), Jayesh Modi ("Modi") and Manisha Patel ("Patel" and, collectively with Rannade and Modi, the "Defendants") and their attorney, James B. Dudley, Esq. ("Dudley"), and Plaintiff and Plaintiff's attorney signed a Stipulation of Settlement and Order ("Order") which was subsequently endorsed and signed by the Hon. Dennis M. Cavanaugh, U.S.D.J. and entered on the court docket on October 9, 2002.

2. Among other things, the Order provided and the parties agreed that:

(a) "Plaintiff is the owner of the copyrights and/or exclusive rights under copyright to distribute the motion pictures listed in Exhibit "A" to Plaintiff's amended complaint (the "Motion Pictures") in the United States and Canada in various formats including, but not limited to, 35mm (theatrical), video cassettes and digital versatile discs (DVD's)."

(b) Defendants infringed Plaintiff's copyrights in and to Plaintiff's Films ".in that, more particularly, infringing copies of some of the Motion Pictures were offered for retail sale and distributed by Defendants."

(c) "Plaintiff obtained unauthorized, infringing copies of the Motion Pictures from the retail store located at 788 Newark Avenue, Jersey City, NJ owned and operated by the Vijay Music Defendants."

(d) The Defendants willfully and knowingly engaged in the unauthorized transport, distribution and display for sale of unauthorized, counterfeit copies of Plaintiff's Films.

(e) The Defendants agreed to be, and the Court ordered that they be permanently enjoined from:

"Infringing Plaintiff's copyrighted films including, but not limited to, the Motion Pictures, by participating individually or through any Affiliate or other third party in any way in the unauthorized copying, purchasing, importing, displaying, selling, reselling, possessing or otherwise distributing unauthorized copies of Plaintiff's copyrighted films including, but not limited to, the Motion Pictures, in the United States and Canada; and, "Offering to copy, purchase, import, display, sell, resell, possess or otherwise distribute any unauthorized copies of Plaintiff's copyrighted films including, but not limited to, the Motion Pictures, in the United States and Canada; and, "Utilizing in any way Plaintiff's copyrighted films including, but not limited to, the Motion Pictures without the written authorization of Plaintiff;."

B. The Order of Seizure and Impoundment and the Order to Show Cause Re: Contempt (the "Order of Seizure and OTSC Re: Contempt")

1. On August 19, 2003 Plaintiff filed and the Hon. Dennis M. Cavanaugh, U.S.D.J. signed, the Order of Seizure and OTSC re: Contempt.

2. Yash Raj had provided to the Court a list of Yash Raj Films as Exhibit "A" to Yash Raj's Amended Verified Complaint and Exhibit "A" to the declarations and documents submitted in support of Yash Raj's application for the Order of Seizure and OSTC re: Contempt (see, Exhibit "A" to Yash Raj's Amended Verified Complaint and Exhibit "A" to the Order of Seizure and OTSC re: Contempt.

3. Yash Raj has submitted to the court all of Yash Raj's Certificates of Copyright Registration and relevant film rights acquisition agreement by which Yash Raj claims copyright and/or exclusive rights under copyright as Exhibit "B" to Yash Raj's Amended Verified Complaint; and, additional Certificates of Copyright Registration for motion pictures released by Plaintiff after Plaintiff filed its amended verified complaint were annexed as Exhibit "A" to Yash Raj's application for the Order of Seizure and OTSC re: Contempt. See, Exhibit "A" to Plaintiff's Amended Verified Complaint and Exhibit "A" to the declarations submitted in support of Plaintiff's Order of Seizure and OTSC re: Contempt. See, also Poppe testimony at p.248-249.

4. Yash Raj has established its copyrights and exclusive rights under copyright in this case and in civil actions in other judicial Districts.

5. There have been four cases of copyright infringement and unlawful labeling brought against Jayesh Modi and his Vijay Appliance/Vijay Music Centre business commencing in 1999, including the instant matter against Mr. Modi and Rannade Corporation and Manisha Patel for distributing unauthorized copies of Yash Raj films. Modi has been permanently enjoined three times and Patel once from distributing unauthorized infringing Indian media products. See, Poppe test. p.238-239; see also Modi test. p.170-177; see also, Plaintiff's exhibits "10" and "11"; see also Bhouraskar test.76, lines 1-5 and lines 13-210.

6. Plaintiff's investigator had purchased VHS cassettes containing unauthorized infringing copies of three Yash Raj Motion Pictures in which Plaintiff held the copyrights and/or exclusive rights under copyright at the Defendants' retail store: "Diwale Dulhania Le Jayenge", "Mohabbatein" and "Silsila". Plaintiff's representative, Vaibhav Rajput, examined each of those VHS cassettes and confirmed that they contained counterfeit copies of the three Plaintiff's Films. (See, Declaration of Vaibhav Rajput annexed to the Order of Seizure and OTSC re: Contempt at pp.3 and 4, ¶¶5 and 6; see also Declaration of Plaintiff's investigator annexed the Order of Seizure and OTSC re: Contempt, p. 3 ¶6; see also Exhibit "B-2" to the Order of Seizure.

7. The Order of Seizure authorized Plaintiff to seize counterfeit copies of all Plaintiff's Films, (including, but not limited to Plaintiff's Films "Saathiya" and "Awaara") in which Yash Raj holds the copyrights and/or exclusive rights under copyright. See, Poppe testimony p.243, lines 18-21, p. 244, lines 4-7, p.245, lines 1-2; see also, Order of Seizure and OTSC re: Contempt p.7; see also Exhibit "A" to Order of Seizure and OTSC re: Contempt; see also, Poppe test. p. 245, lines 17-25 and p.249, lines 1-25.

8. The Court in the Order of Seizure made certain findings of facts including, but not limited to the following:

(i) Plaintiff has obtained Certificates of Copyright Registration from the United States Copyright Office for 16 of Plaintiff's Films. See Order of Seizure, findings of fact at ¶1 pp. 4 ¶1

(ii) That Plaintiff's investigator had obtained copies of Plaintiffs' Films from the Defendants which Plaintiff's representative had identified as unauthorized, counterfeit copies of Plaintiff's Films. See, Order of Seizure, findings of fact, p.5 ¶2.

(iii) That Plaintiff had distributed authorized copies of Plaintiff's Films in the United States with notice of Plaintiff's copyright and Plaintiff's logo and tradename clearly printed on said authorized copies. See, Order of Seizure, findings of fact, p. 6 ¶5.

(iv) That Plaintiff had informed Defendants that Plaintiff held the copyright and/or exclusive rights under copyright to Plaintiff's Films and warned Defendants against distributing unauthorized copies of Plaintiff's Films. See Order of Seizure, findings of facts, p. 6 ¶6.

9. Based upon the findings of fact contained in the Order of Seizure and OTSC re: Contempt, the court ordered that:

(i) Plaintiff is authorized to enter the ".Patel Video & Variety and the Vijay Appliances/Vijay Music Centre business premises identified above and to take all reasonable steps to seize and secure the following property: A) any and all unauthorized video cassettes, video compact discs, digital versatile discs containing copies of Plaintiff's motion pictures including but not limited to Plaintiff's Films listed in Exhibit "A" to the Declarations submitted in Support of this Application B) any other infringing video cassettes, video compact discs and DVD's of Plaintiff's copyrighted motion pictures including, but not limited to, Plaintiff's Films, which do not bear the distinguishing characteristics of authorized video cassettes video compact discs or DVD's including, but not limited to: (1) distinctive marks, "heat stamps", or laser cuts embedded in the cassette, disc or DVD, (2) holograms affixed to the outside of the cassette, disc, or DVD, (3) ink jet marking on the spine of the cassette, disc or DVD, (4) watermarks on labels, (5) security stickers on boxes and cassettes, (6) video tape length commensurate with the running time of Plaintiff's Films, and/or (7) professional packaging and labeling containing the distinctive art work, logo and trademarks of Plaintiff which may bear color or black and white photocopies labels, or handwritten or typewritten labels; and, 8) all masters, transcriptions, recordings, video cassettes and DVD's which infringe on the Plaintiff's copyrights or exclusive rights under copyright in Plaintiff's motion pictures.and seizing said articles as may be found in the possession or control of defendants or their agents or employees at the [Defendants'] places of business.". See, Order of Seizure at p. 7.

(ii) That Plaintiff's seizure in the Defendants' Vijay Appliance, Vijay Music Centre premises "shall include any and all basements, tunnels, hallways and upper floors connected to and accessible from or through the main business floor level of the aforesaid premises." See Order of Seizure, p. 8.

(iii) "That the attorneys for Plaintiff shall inventory all articles seized and provide a list of such inventory to the United States Marshal, .and Vijay Appliances/Vijay Music Centre at the Defendants' business premises." See, Order of Seizure at p. 9.

(iv) "That trained representatives of Plaintiff may accompany and assist the United States Marshals Service in the execution of the Order of Seizure to inspect and photograph the infringing video cassettes, video compact, DVDs and other materials that may be subject to impoundment." See, Order of Seizure at p.9.

C. Seizure Conducted at the Defendants' Vijay Appliance/Vijay Music Centre Business on August 23, 2003.

1. On August 23, 2003 Plaintiff seized 1,076 digital versatile discs ("DVDs") and 37 "VHS" video cassettes containing unauthorized copies of Plaintiff's Films from the Defendants' Vijay Appliance/Vijay Music Centre business. See, Poppe and Rajput supplemental declarations in support of Plaintiff's application for the Order of Seizure and OTSC re: contempt, Rajput Decl. at ¶5 and Exhibit "A" and "B" thereto; see also, Plaintiff's hearing exhibit "1" on Defendants' motion to suppress.

2. Plaintiff prepared an inventory that identified all of Plaintiff's motion pictures of which counterfeit copies were seized during the Seizure and highlighted the motion pictures titles which have previously been registered with the United States Copyright Office by Plaintiff. See, Plaintiff's supplemental declarations in support of the order of seizure/order to show cause re: contempt; Exhibit "B"; see also, Rajput test. p. 289 lines 12-21; Bhouraskar test. p. 83 lines 3-6, 8-9; see also, Plaintiff's hearing exhibit "1". See also Poppe Supplemental Declaration filed 2/9/07.

3. Included in the DVDs and VHS cassettes seized by Plaintiff at the Seizure are 453 DVDs that contained "full length" counterfeit copies of 26 motion pictures in which Plaintiff owns the copyright and exclusive rights under copyright of which 13 titles were registered with the United States Copyright Office. (See, supplemental declarations in support of the Order of Seizure and OTSC re: Contempt, Exhibit "B" p. 1).

4. Included in the DVD and VHS cassettes seized by Plaintiff at the Seizure are 37 VHS cassettes (see, for example, Plaintiff's hearing exhibits "2a", 2b", "2c" and "2d") that contained "full length" counterfeit copies of 9 motion pictures in which Plaintiff owns the copyright and exclusive rights under copyright of which 5 titles were registered with the United States Copyright Office. (See, supplemental declarations in support of the Order of Seizure and OTSC re: Contempt, Exhibit "B" p. 2).

5. At the Seizure, Plaintiff seized 623 DVDs that contained pirated copies of excerpts of Plaintiff's Films and the films of other film distributors which contained 93 separate and distinct infringing excerpts of motion pictures in which Plaintiff owns the copyright and exclusive rights under copyright and which plaintiff had registered with the United States Copyright Office. (See, supplemental declarations in support of the Order of Seizure and OTSC re: Contempt, Exhibit "B" p. 3-8).

D. Hearing Testimony and Exhibits on Defendants' Motion to Suppress

1. Pursuant to the Order of Seizure, a seizure (the "Seizure") was conducted at the Defendants' Vijay Appliance/Vijay Music Centre business on August 23, 2003 (see Rajput ...


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