Evans v. Valenti

1
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
LANCE EVANS,
Plaintiff,
-against-
MICHAEL VALENTI,
Defendant.
MEMORANDUM AND ORDER
23-cv-06733-LDH-SLT
LASHANN DEARCY HALL, United States District Judge:
Lance Evans (“Plaintiff”), proceeding pro se, brings the instant action against Michael
Valenti (“Defendant”), asserting claims for breach of contract, copyright infringement, and
multiple acts of fraud. (Compl. ¶¶ 6–63, ECF No. 1–7.) Defendant moves pursuant to Federal
Rule of Civil Procedure 12(b)(6) to dismiss the complaint in its entirety. (Def.’s Mot. Dismiss,
ECF No. 17.)
BACKGROUND1
Beginning in 2007, Defendant offered Plaintiff multiple opportunities to work on
Defendant’s musical composition titled “Little Park Across the Street” (“LPATS”). (Compl. ¶¶
6–7.) Defendant requested Plaintiff’s “talents, resources, and production company to create
various products, based on LPATS.” (Id. ¶ 8.) And, Defendant informed Plaintiff that LPATS
was a “new project” that had not been “shopped around.” (Id. ¶ 13(a).) In addition, Defendant
represented to Plaintiff that Defendant would secure investment capital for LPATS from his
network of investors. (Id. ¶ 10(a).) From the summer of 2007 through the beginning of 2009,
1 The following facts are taken from the Complaint and are assumed to be true for the purpose of this
memorandum and order, unless otherwise indicated.
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Plaintiff and Defendant (collectively, “the Parties”) worked on LPATS and other music
recordings. (Id. ¶ 6.) However, six months into Plaintiff’s work on the LPATS, Plaintiff learned
that LPATS was not a new project, and that Defendant had previously, albeit unsuccessfully,
“shopped” it around to investors. (Id. ¶¶ 13(b)-(c).) This discovery indicated to Plaintiff that it
was less likely that Defendant would be able to raise the funding he had promised. (Id. ¶¶ 13(b)-
(d).) Nevertheless, Plaintiff proceeded to perform “massive amounts of work” on LPATS and
incurred expenses related to this work. (Id. ¶ 10(a).) Defendant did not pay Plaintiff for the
work that he performed, nor did Defendant reimburse Plaintiff for the expenses Plaintiff incurred
while working on LPATS from 2007 until 2009. (Id.)
During “the 2010s[,]” Defendant requested Plaintiff’s assistance on a personal project to
include headshots, a website, and production on an autobiography for Defendant’s personal
project unrelated to LPATS. (Id. ¶¶ 14(a)-(b).) Defendant communicated to Plaintiff that,
should Plaintiff help with Defendant’s personal project, Defendant would be placed in a better
position to secure funding for LPATS, which would help get LPATS “back on track.” (Id. ¶¶
14(a).) Ultimately, Plaintiff provided Defendant with the assistance that he requested on his
personal project. (Id. ¶ 14(c).) But, Defendant did not pay Plaintiff for that work. (Id.)
Furthermore, Plaintiff’s assistance with Defendant’s personal project and additional work on
LPATS did not result in any additional funding for LPATS. (Id.)
In November 2022, Defendant offered Plaintiff another opportunity to work on LPATS.
(Id. ¶ 10(b).) Defendant informed Plaintiff that Defendant’s creative partner, Elsa, passed away,
and that her will transferred her rights to LPATS to Defendant, resulting in Defendant’s full
ownership of LPATS. (Id. ¶¶ 18, 20(a).) Defendant offered Plaintiff: the title of “Executive
Producer” of LPATS, which would make Plaintiff responsible for producing the entire project;
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and the title of “Producer” for LPATS’s unpublished sheet music, which would result in Plaintiff
receiving revenue from production of the sheet music. (Id. ¶¶ 20(d)-(e).) Plaintiff and
Defendant agreed to a three-year “cancellation clause” whereby Defendant could take LPATS
back if Plaintiff did not publish or produce “anything” in three years. (Id. ¶ 20(f).) Plaintiff also
agreed to work on raising money to fund LPATS. (Id. ¶ 10(b).) However, this agreement was
not memorialized in writing. (Id. ¶ 20(f).) On April 11, 2023, Plaintiff provided Defendant with
a thumb-drive containing work product for LPATS. (Id. ¶ 37(j).)
In April 2023, Defendant admitted to Plaintiff that Defendant did not in fact have full
ownership over LPATS because Elsa’s will did not, in fact, transfer her rights to Defendant but
instead transferred her rights to her son (the “Heir”). (Id. ¶¶ 25-27.) As a result, Plaintiff
contacted the Heir to discuss the Parties’ intentions to publish work related to LPATS. (Id. ¶
28.) On May 11, 2013, the Heir agreed to sign an agreement to allow Plaintiff to publish such
work. (Id. ¶ 36.)
Plaintiff worked on LPATS until its completion in May of 2023. (Id. ¶¶ 10(b), 39(a).)
On May 25, 2023, Plaintiff presented to Defendant a written agreement to which Defendant
responded in an email, “looks pretty good[.]” (Id. ¶ 39(f).) Defendant, however, did not execute
the agreement. (Id.) And, on May 29, 2023, Defendant called Plaintiff to inform him that he did
not want the Parties to continue working on LPATS. (Id. ¶ 39.) In addition, Defendant refused
to offer Plaintiff any compensation for his prior work on LPATS. (Id. ¶ 10(b).)
Also, on May 29, 2023, Plaintiff discovered, through a Google search, that Defendant
published personal projects using art and photo portraits created by Plaintiff without his
permission. (Id. ¶¶ 40, 42.) Plaintiff also discovered that Defendant published a musical “demo”
of LPATS in violation of the Parties’ effective “exclusive publishing agreement.” (Id. ¶¶ 13(b),
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44-46.) When Plaintiff contacted Defendant about his publication of the demo, Defendant
removed the demo from some, but not all, of the sites where it was published. (Id. ¶ 52.)
STANDARD OF REVIEW
To survive a Rule 12(b)(6) motion to dismiss, a complaint “must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). A claim is facially plausible when the alleged facts allow the court to draw a
“reasonable inference” of a defendant's liability for the alleged misconduct. Id. Although this
standard requires more than a “sheer possibility” of a defendant's liability, id., “[i]t is not the
Court's function to weigh the evidence that might be presented at a trial” on a motion to
dismiss. Morris v. Northrop Grumman Corp., 37 F. Supp. 2d 556, 565 (E.D.N.Y. 1999).
Instead, “the Court must merely determine whether the complaint itself is legally sufficient, and,
in doing so, it is well settled that the Court must accept the factual allegations of the complaint as
true.” Id. (citations omitted).
Moreover, where, as here, a plaintiff is proceeding pro se, their pleadings “must be
construed liberally and interpreted to raise the strongest arguments that they suggest.” Sykes v.
Bank of Am., 723 F.3d 399, 403 (2d Cir. 2013) (quoting Triestman v. Fed. Bureau of Prisons,
470 F.3d 471, 474 (2d Cir. 2006). A pro se complaint, “however inartfully pleaded, must be held
to less stringent standards than formal pleadings drafted by lawyers.” Boykin v. KeyCorp, 521
F.3d 202, 213–14 (2d Cir. 2008) (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per
curiam)).
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DISCUSSION
I. Copyright Infringement Claims
A plaintiff asserting a claim of copyright infringement claim must establish (1) ownership
of a valid copyright and (2) copying of constituent elements of the work that are original.
Michael Grecco Productions, Inc. v. RADesign, Inc., 112 F. 4th 144, 153 (2d Cir. 2024).2 Of
particular relevance here, the Copyright Act provides that “no civil action for infringement of the
copyright in any United States work shall be instituted until preregistration or registration of the
copyright claim has been made in accordance with this title.” 17 U.S.C. § 411(a). That is,
according to the Supreme Court, Section 411(a) of the Copyright Act “establishe[d] a
condition—copyright registration—that plaintiffs ordinarily must satisfy before filing an
infringement claim and invoking the [Copyright] Act’s remedial provisions.” Reed Elsevier, Inc.
v. Muchnick, 559 U.S. 154, 158 (2010). Accordingly, courts in the Second Circuit require a
plaintiff asserting a copyright infringement claim to “either (1) hold[] a valid copyright
registration, or (2) ha[ve] applied for and [] been refused registration.” See e.g. Adlife Mktg. &
Commc'ns Co. v. Best Yet Mkt., Inc., No. 217-CV-2978, 2017 WL 4564763, at *3 (E.D.N.Y. Oct.
11, 2017) (collecting cases).
2 As a threshold matter, and as Defendant aptly notes, Plaintiff failed to identify the allegedly infringed works in his
complaint. (Def.’s Mem. L. Supp. Mot. Dismiss (“Def.’s Mem.”) at 9, ECF No. 17-1.) However, in Plaintiff’s
opposition to Defendant’s motion to dismiss, Plaintiff clarified that his first copyright infringement claim is related
to the photo taken by Plaintiff of Defendant standing at a piano (the “Piano Photo”). (See Pl.’s Response Def.’s
Mot. Dismiss (“Pl.’s Response”) at 10 (“Ex. D”), ECF No. 16.) Defendant also cites to the Piano Photo as the
subject of Plaintiff’s first claim for copyright infringement. (Def.’s Mem. at 2.) Thus, the Court construes the Piano
Photo as being the subject copyright for Plaintiff’s first claim. BankUnited, N.A. v. Merritt Env't Consulting Corp.,
360 F. Supp. 3d 172, 183 (S.D.N.Y. 2018) (“When deciding a motion to dismiss, a court is entitled to consider . . .
documents or information contained in defendant’s motion papers if plaintiff has knowledge or possession of the
material and relied on it in framing the complaint . . . .”) (quoting Weiss v. Inc. Vill. of Sag Harbor, 762 F.Supp.2d
560, 567 (E.D.N.Y. 2011)).
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Here, Defendant argues that Plaintiff’s infringement claim as to the “Piano Photo” must
fail because Plaintiff did not sufficiently allege the first infringed work is registered with the U.S.
Copyright Office. (Def.’s Mem. at 9.) Defendant is correct. Absent from the complaint is any
allegation that Plaintiff received or even applied for copyright registration. Indeed, it is not until
Plaintiff’s response submission that Plaintiff provides a document from the U.S. Copyright
Office indicating an effective date of registration for the Piano Photo as August 16, 2023, and a
registration decision date of March 14, 2024. (Pl.’s Response at 10.) However, the provision of
this document does not cure the pleading defect. Copyright registration is a condition precedent
that must be met prior to the initiation of a suit. Unicolors, Inc. v. H&M Hennes & Mauritz, L.
P., 595 U.S. 178, 181 (2022) (“A valid copyright registration [is] . . . a prerequisite for bringing a
‘civil action for infringement’ of the copyrighted work.”); Fourth Est. Pub. Benefit Corp. v.
Wall-Street.com, LLC, 586 U.S. 296, 301 (2019) (“Before pursuing an infringement claim in
court, however, a copyright claimant generally must comply with § 411(a)’s requirement that
‘registration of the copyright claim has been made.’”). Each of the provided registration dates
post-date the filing of the complaint, which was initially filed in New York State Supreme Court
on June 21, 2023.3 (See Notice of Removal at 1, ECF No. 1.) Accordingly, Plaintiff cannot
assert a claim of copyright infringement against Defendant for the Piano Photo.4
3 Plaintiff also failed to allege that the Piano Photo is subject to any of the Copyright Act’s enumerated exceptions
that permit instituting a suit without registration. See 17 U.S.C. §§ 411 (a), (c)(1)-(2) (permitting a copyright
applicant to bring suit “where the deposit, application, and fee required for registration have been delivered to the
Copyright Office in proper form and registration has been refused” and permitting a copyright holder to bring suit
“[i]n the case of a work consisting of sounds, images, or both, the first fixation of which is made simultaneously
with its transmission . . . .”)
4 Nothing about this conclusion operates to prevent Plaintiff from initiating a new copyright infringement suit
against Defendant for the Piano Photo, so long as any suit is brought within the proscribed statute of limitations
period.
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Plaintiff’s second claim for copyright infringement fares no better. In Plaintiff’s second
claim of copyright infringement, Plaintiff complains of Defendant’s publication of a musical
“demo” of LPATS during the time period in which an “exclusive publishing agreement” was in
effect between the Parties. (Id. ¶¶ 13(b), 44-46.) Specifically, Plaintiff argues that Defendant’s
publication of the demo “infringed upon the rights of the Plaintiff, who he had an exclusive
publishing agreement with[.]” (Id. ¶¶ 45-46.) However, as the Complaint makes plain, the demo
at issue was not created by Plaintiff. (Id.) Indeed, the label on the demo indicated that the demo
was copyrighted in 2000, seven years prior to Plaintiff’s engagement with LPATS beginning in
2007. (Id. ¶ 13(b).) Accordingly, Defendant argues that Plaintiff lacks standing to bring a
copyright claim related to the demo because Plaintiff does not have any rights to the demo.
(Def.’s Mem. at 11.) (“Plaintiff . . . is neither the legal owner nor an exclusive licensee of the
LPATS intellectual property and cannot assert a copyright infringement claim regarding
LPATS.”) Here, again, Defendant is correct. See Monbo v. Nathan, 623 F.Supp.3d 56, 131
(E.D.N.Y. 2022) (finding that plaintiff lacks standing to sue for copyright infringement because
she is not an “owner of the copyrights” for which she alleges infringement); see also Urbont v.
Sony Music Ent., 831 F.3d 80, 87 n.6 (2d Cir. 2016) (noting that the “plaintiffs must prove
ownership. . . to assert their standing to bring suit [for copyright infringement]”). Because
Plaintiff does not have standing to bring a copyright infringement suit for Defendant’s
publication of a musical “demo” of LPATS that pre-dated Plaintiff’s involvement, Plaintiff’s
second claim for copyright infringement fails as a matter of law.
II. Leave to Amend
Generally, a court should not dismiss a pro se complaint without granting leave to amend
“at least once when a liberal reading of the complaint gives any indication that a valid claim
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might be stated.” Dolan v. Connolly, 794 F.3d 290, 295 (2d Cir. 2015) (citation and internal
quotation marks omitted). However, among the reasons courts deny leave to amend is futility of
amendment. United States ex rel. Raffington v. Bon Secours Health Sys., Inc., 567 F. Supp. 3d
429, 438 (S.D.N.Y. 2021) (describing “good reason” to deny leave to amend on the basis of
“undue delay, bad faith, futility of amendment, or undue prejudice to the opposing party.”)
Futility in amendment exists where “the barriers to relief for [plaintiff’s] claims cannot be
surmounted by reframing the complaint.” Ashmore v. Prus, 510 F. App’x 47, 49 (2d Cir. 2013).
Against this backdrop, the Court concludes that amendment would be futile.
First, an amended complaint will not change the date Plaintiff instituted his copyright
infringement suit; amended complaints do not serve as new actions. United States ex rel. Wood
v. Allergan, Inc., 899 F.3d 163, 172 (2d Cir. 2018) (“[A]mending or supplementing a complaint
does not bring a new action, it only brings a new complaint into an action that is already
pending.” (emphasis omitted).) That is, an amended complaint will still be tethered to the date of
the complaint’s original filing, which was before Plaintiff obtained copyright registration for the
Piano Photo. Thus, amendment of Plaintiff’s first copyright infringement claim would be futile
because it would still be barred in light of Plaintiff’s failure to register the Piano Photo before
commencing this action.
Second, an amended complaint will not confer standing upon Plaintiff with respect to his
second copyright claim. Obviously, Plaintiff’s lack of copyright ownership in the musical
“demo” of LPATS will not be changed by virtue of filing an amended complaint. Eden Toys,
Inc. v. Florelee Undergarment Co., 697 F.2d 27, 32 (2d Cir. 1982) (“The Copyright Act
authorizes only two types of claimants to sue for copyright infringement: (1) owners of
copyrights, and (2) persons who have been granted exclusive licenses by owners of copyrights.”)
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Accordingly, amendment would be futile with respect to Plaintiff’s second claim for copyright
infringement.
CONCLUSION5
For the foregoing reasons, Defendant’s motion to dismiss is GRANTED. Plaintiff’s
motion to amend is DENIED. Plaintiff’s first claim for copyright infringement is DISMISSED
without prejudice. Plaintiff’s second claim for copyright infringement is DISMISSED with
prejudice. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal would not be
taken in good faith and therefore in forma pauperis status is denied for purpose of an appeal. See
Coppedge v. United States, 369 U.S. 438, 444–45 (1962). The Clerk of Court is respectfully
directed to close the case.
Dated: Brooklyn, New York
March 12, 2026
SO ORDERED.
__/s/ LDH______________
LASHANN DEARCY HALL
United States District Judge
5 Having dismissed the federal claims in this action, the Court declines to exercise supplemental jurisdiction over
Plaintiff’s state law claims. See Kolari v. New York-Presbyterian Hosp., 455 F.3d 118, 122 (2d Cir. 2006) (“[A]
district court ‘may decline to exercise supplemental jurisdiction’ if it ‘has dismissed all claims over which it has
original jurisdiction.’” (quoting 28 U.S.C.A. § 1367(c)(3)).
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