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Smith v. Mikki More, LLC

United States District Court, S.D. New York

May 9, 2014

ADAM SMITH, FRANK D'ANGELO, and DAWN JASPER, Plaintiffs,
v.
MIKKI MORE, LLC, VINCENT PACIFICO, and DARIAN BRAUN, Defendants

Page 277

For plaintiffs: Romeo Salta, Charles H. Knull, New York, NY.

For defendant Pacifico: Frank M. Graziadei, New York, NY.

OPINION

Page 278

OPINION & ORDER

DENISE COTE, United States District Judge.

On February 7, 2014, defendant Vincent Pacifico (" Pacifico" ) moved to dismiss plaintiffs' Second Amended Complaint. For the reasons below, Pacifico's motion is granted as to Count IV and otherwise denied.

BACKGROUND

Plaintiffs Adam Smith (" Smith" ), Frank D'Angelo (" D'Angelo" ), and Dawn Jasper (" Jasper" ) allege the following facts in

Page 279

their Second Amended Complaint (" SAC" ). Between May 31, 2011 and January 2012, plaintiffs created wholly original label designs (the " Label Materials" ), packaging, advertisements, and a website (the " Website" ) to promote and market defendants' Mikki More hair-care products. D'Angelo also negotiated with retail outlets to place Mikki More products; oversaw and approved Mikki More packaging, as well as a marketing and promotional campaign for Mikki More; and paid for certain expenses related to the Mikki More venture totaling several thousand dollars. On November 17, 2011, D'Angelo and defendant Darian Braun (" Braun" ) agreed that, as payment, D'Angelo was to receive 20% of the outstanding shares of Rock Care Corp. (" Rock Care" ), a New York corporation owned by Braun that controlled the manufacture, promotion, marketing, and sale of the Mikki More hair-care product line. On December 12, 2011, Braun delivered a share certificate for a 2% interest in Rock Care. D'Angelo repeatedly demanded the promised 20% interest; Braun subsequently admitted on several occasions that he had promised D'Angelo 20%, not 2%, but refused to transfer the balance. Jasper was also promised payment for creation of the Website, but was never paid.

In July 2012, D'Angelo sought assistance from his long-time friend, defendant Pacifico. D'Angelo explained that plaintiffs had created the Label Materials, store displays, advertising and promotional campaigns, and the Website; that in exchange Braun had promised 20% of the net proceeds of the Mikki More venture; and that Braun had refused to compensate plaintiffs as promised. Pacifico told D'Angelo he would investigate and attempt to settle the dispute.

Instead, in August 2012, Pacifico struck a deal with Braun. Pacifico formed defendant Mikki More LLC and acquired on behalf of the LLC all rights to the Mikki More products from Rock Care. Braun was compensated by Pacifico for an interest in Mikki More LLC; Braun kept a 50% interest in the LLC. At the time, Pacifico knew that he and Braun would be using unauthorized, copyrighted works created by plaintiffs, including the Label Materials and Website, for labeling, advertising, and promotion of the Mikki More products.

Thereafter, Braun and Pacifico learned that high-resolution digital files of plaintiffs' work were required. Braun personally promised plaintiffs to pay outstanding fees in order to obtain from plaintiffs these high-resolution files. Braun also promised Jasper additional payment for managing Mikki More's Facebook page, its Twitter account, and other social media marketing. Because Braun did not pay these fees, plaintiffs refused to hand over the files. Braun and Pacifico then agreed to hire Troy Hahn (" Hahn" ) to re-create the digital files using copies of the copyrighted works. Plaintiffs attach to the SAC a copy of the check issued to Hahn for this work, as well as the envelope enclosing that check, which plaintiffs allege was sent from Pacifico's office.

D'Angelo and Smith applied to the United States Copyright Office for registration of copyright in the " text" and " 2-D artwork" in the Label Materials and received Registration Number VAu 1-137-371, effective April 3, 2013 (the " Label Materials Copyright" ). D'Angelo, Smith, and Jasper applied for registration of copyright in " text" and " 2-D artwork" in the Website and received Registration Number VAu 1-137-618, effective April 16, 2013 (the " Website Copyright" ). Copies of both registration statements, and of the deposits of material covered by those ...


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