Missy Chase Lapine, author of The Sneaky Chef: Simple Strategies for Hiding Healthy Foods in Kids' Favorite Meals, has come up empty in her claims against Jerry Seinfeld and his wife, Jessica. Lapine had sued Jessica, author of the book Deceptively Delicious: Simple Secrets to Get Your Kids Eating Good Food, for copyright and trademark infringement. But Manhattan federal district court Judge Laura Swain threw those claims out, finding that there were sufficient differences between the two books. Lapine v. Seinfeld, 08 Civ. 128(LTS)(RLE).
“[The] court finds that neither the total and feel of the two works nor the points of similarity identified by plaintiffs is sufficient, as a matter of law, to support a finding of substantial similarity of copyrightable material between the two works,” wrote Judge Swain. “In other words, no reasonable fact finder could conclude on this record that an ordinary lay observer would be disposed to overlook the disparities between the words and find them, in their specifics or in their totality, to have the same aesthetic appeal.”
Orin Snyder of Gibson Dunn & Crutcher, who represents the Seinfelds and Jessica's publisher, HarperCollins, said in a statement: “The ruling in Jessica's favor is unequivocal, dismissing every claim made by the plaintiff against her and confirming that this opportunistic and meritless lawsuit never should have been brought in the first place. No one copied anything from the plaintiff ' not Jessica and not HarperCollins. Jessica created her best-selling cookbook in her own kitchen and from her own experiences.”
Judge Swain declined to exercise jurisdiction over a defamation claim Lapine made against Jerry for his appearance on the “The Late Show with David Letterman” in which he said that “one of the fun facts of celebrity life is that wackos will wait in the woodwork to pop out,” adding that “many three-named people do become assassins.”
Judge Swain also declined to hear Lapine's claims that HarperCollins stole her manuscript and breached an implied contract it had with her. Lapine's lawyer, Howard Miller of Girardi & Keese, told us that he plans on filing those claims in New York state court. He added that he was reviewing Judge Swain's decision on the copyright claims and considering an appeal.
Court Insight
In the U.S. Court of Appeals for the Second Circuit ' within which the U.S. District Court for the Southern District of New York resides ' the perspective for determining whether substantial similarity exists between disputed works in a copyright infringement suit is, as in many jurisdictions, that of the 'ordinary observer.' In Lapine v. Seinfeld, 08 Civ. 128(LTS)(RLE), comedian Jerry Seinfeld's wife Jessica and her cookbook co-defendant HarperCollins Publishers asked Southern District Judge Laura Swain to instead apply a 'more discerning' test used in cases that involve works with many public domain elements. Under this test, the court is to remove the public domain parts and inquire whether remaining protectable elements are substantially similar.
But Judge Swain observed in the dispute over The Sneaky Chef and Deceptively Delicious that the Second Circuit has commanded courts ”not to dissect the works at issue into separate components and compare only the copyrightable elements.' Doing so would take the test to the extreme by breaking down original works to their basic composite parts and render copyright protection nearly meaningless. ' The [c]ourt need not reach the question of whether application of the 'more discerning' test is proper, however, as the [c]ourt finds that Plaintiffs have failed to establish substantial similarities between the two works under the ordinary observer test. ' Regardless of which variation is used ' the ordinary observer or the more discerning ordinary observer ' the substantial similarity analysis is to be 'guided by comparing the 'total concept and feel' of the contested works.”
In deciding against Missy Chase Lapine on her trademark infringement claim under the federal Lanham Act over the cookbooks' cover images, Judge Swain found: 'Except in the most abstract sense, these marks are not similar. The line drawing that is part of Plaintiffs' mark [on The Sneaky Chef] is a much simpler drawing than those appearing on Deceptively Delicious. Even the simpler drawing on the spine of Defendants' cookbook includes substantially more detail in the eyes, nose, mouth, hair, hand, right down to an earring in the female figure's ear. The more colorful figure on the cover of Deceptively Delicious is even less similar to Plaintiffs' sketched chef. She is drawn more realistically, with flesh-toned skin, shaded hair and clearly visible eye-color. Additionally, the figure on Deceptively Delicious, unlike the figure in Plaintiffs' mark, is dressed in street clothing; nothing about her suggests that she is a professional chef.' (Lapine is a trained chef.)
Judge Swain further explained of the trademark issue: 'Although the works deal with a similar subject matter and are both in book form, such that they are likely to be displayed near each other in a retail environment, the other aspects of the books' covers provide quite different aesthetic contexts for the marks '. Additionally, Jessica Seinfeld's name is prominently displayed on the cover of Deceptively Delicious. Although not itself a 'brand name,' the fame of the 'Seinfeld' name lessens any likelihood of confusion that might have existed.'
' Stan Soocher
Andrew Longstreth is a Senior Reporter for The American Lawyer, an affiliate publication of Entertainment Law & Finance.
Missy Chase Lapine, author of The Sneaky Chef: Simple Strategies for Hiding Healthy Foods in Kids' Favorite Meals, has come up empty in her claims against Jerry Seinfeld and his wife, Jessica. Lapine had sued Jessica, author of the book Deceptively Delicious: Simple Secrets to Get Your Kids Eating Good Food, for copyright and trademark infringement. But Manhattan federal district court Judge Laura Swain threw those claims out, finding that there were sufficient differences between the two books. Lapine v. Seinfeld, 08 Civ. 128(LTS)(RLE).
“[The] court finds that neither the total and feel of the two works nor the points of similarity identified by plaintiffs is sufficient, as a matter of law, to support a finding of substantial similarity of copyrightable material between the two works,” wrote Judge Swain. “In other words, no reasonable fact finder could conclude on this record that an ordinary lay observer would be disposed to overlook the disparities between the words and find them, in their specifics or in their totality, to have the same aesthetic appeal.”
Orin Snyder of Gibson Dunn & Crutcher, who represents the Seinfelds and Jessica's publisher, HarperCollins, said in a statement: “The ruling in Jessica's favor is unequivocal, dismissing every claim made by the plaintiff against her and confirming that this opportunistic and meritless lawsuit never should have been brought in the first place. No one copied anything from the plaintiff ' not Jessica and not HarperCollins. Jessica created her best-selling cookbook in her own kitchen and from her own experiences.”
Judge Swain declined to exercise jurisdiction over a defamation claim Lapine made against Jerry for his appearance on the “The Late Show with David Letterman” in which he said that “one of the fun facts of celebrity life is that wackos will wait in the woodwork to pop out,” adding that “many three-named people do become assassins.”
Judge Swain also declined to hear Lapine's claims that HarperCollins stole her manuscript and breached an implied contract it had with her. Lapine's lawyer, Howard Miller of Girardi & Keese, told us that he plans on filing those claims in New York state court. He added that he was reviewing Judge Swain's decision on the copyright claims and considering an appeal.
Court Insight
In the U.S. Court of Appeals for the Second Circuit ' within which the U.S. District Court for the Southern District of New York resides ' the perspective for determining whether substantial similarity exists between disputed works in a copyright infringement suit is, as in many jurisdictions, that of the 'ordinary observer.' In Lapine v. Seinfeld, 08 Civ. 128(LTS)(RLE), comedian Jerry Seinfeld's wife Jessica and her cookbook co-defendant HarperCollins Publishers asked Southern District Judge Laura Swain to instead apply a 'more discerning' test used in cases that involve works with many public domain elements. Under this test, the court is to remove the public domain parts and inquire whether remaining protectable elements are substantially similar.
But Judge Swain observed in the dispute over The Sneaky Chef and Deceptively Delicious that the Second Circuit has commanded courts ”not to dissect the works at issue into separate components and compare only the copyrightable elements.' Doing so would take the test to the extreme by breaking down original works to their basic composite parts and render copyright protection nearly meaningless. ' The [c]ourt need not reach the question of whether application of the 'more discerning' test is proper, however, as the [c]ourt finds that Plaintiffs have failed to establish substantial similarities between the two works under the ordinary observer test. ' Regardless of which variation is used ' the ordinary observer or the more discerning ordinary observer ' the substantial similarity analysis is to be 'guided by comparing the 'total concept and feel' of the contested works.”
In deciding against Missy Chase Lapine on her trademark infringement claim under the federal Lanham Act over the cookbooks' cover images, Judge Swain found: 'Except in the most abstract sense, these marks are not similar. The line drawing that is part of Plaintiffs' mark [on The Sneaky Chef] is a much simpler drawing than those appearing on Deceptively Delicious. Even the simpler drawing on the spine of Defendants' cookbook includes substantially more detail in the eyes, nose, mouth, hair, hand, right down to an earring in the female figure's ear. The more colorful figure on the cover of Deceptively Delicious is even less similar to Plaintiffs' sketched chef. She is drawn more realistically, with flesh-toned skin, shaded hair and clearly visible eye-color. Additionally, the figure on Deceptively Delicious, unlike the figure in Plaintiffs' mark, is dressed in street clothing; nothing about her suggests that she is a professional chef.' (Lapine is a trained chef.)
Judge Swain further explained of the trademark issue: 'Although the works deal with a similar subject matter and are both in book form, such that they are likely to be displayed near each other in a retail environment, the other aspects of the books' covers provide quite different aesthetic contexts for the marks '. Additionally, Jessica Seinfeld's name is prominently displayed on the cover of Deceptively Delicious. Although not itself a 'brand name,' the fame of the 'Seinfeld' name lessens any likelihood of confusion that might have existed.'
' Stan Soocher
Andrew Longstreth is a Senior Reporter for The American Lawyer, an affiliate publication of Entertainment Law & Finance.
