A Delicious Decision in the Jessica Seinfeld Cookbook Case

Have any of you wondered what happened in the Jessica Seinfeld cookbook case?  Being an attorney* and a food blogger**, I was very intrigued with the issues involved. Little did I know that close to two years later, I'd be preparing to speak about some of those issues as a member of the "Protecting Yourself and Your Work" panel at BlogHer Food '09.

The Opinion & Order*** relating to the main issues in this case was just issued on September 10, 2009. So let's look at some of the issues that the Court deemed important in this case and that may be most interesting to those of us who blog about food. After all, many of us have a cookbook fantasy floating around in our heads. I'll do my best to keep the legalese to a bare minimum. In doing so, some of the issues involved in the case may be simplified and/or left out to make for an easier read.

The two cookbooks in question are Missy Chase Lapine's "The Sneaky Chef" and Jessica Seinfeld" "Deceptively Delicious."

In February 2006, then again in May 2006, Missy Chase Lapine submitted cookbook proposals to HarperCollins. They were both rejected. In April 2007, "The Sneaky Chef" was published by Running Press, part of Perseus Books Group.  In October 2007, Jessica Seinfeld's cookbook, "Deceptively Delicious," was published by HarperCollins.

Both books contain the idea of camouflaging pureed healthy food in children's favorite foods. Both books contain lists of food staples and kitchen items to keep on hand. Both books contain recipe sections. In January 2008, Missy Chase Lapine sued Jessica Seinfeld alleging copyright and trademark infringement.

There was no trial in this case. The Court found that there were no facts in dispute requiring a jury. The legal issues were clear enough that they could be decided by the Court. Judge Swain's Opinion & Order found that the claims alleging copyright and trademark infringement could not be sustained, so they were dismissed.

"The Sneaky Chef" contains thirteen ways of sneaking in healthy food. Using purees is just one of the ways. "Deceptively Delicious" focuses on food purees as the main method for sneaking in healthy food.

Winning a copyright infringement claim is not easy. There are several requirements:

  • Plaintiff must show that they have a valid copyright.
  • Plaintiff must show that the work in question was copied by Defendant.
  • Plaintiff must show that the copying was illegal because a substantial similarity exists between Defendant's work and the protectible elements of Plaintiff's work.

The Court found that Lapine failed to show a "substantial similarity" between the two cookbooks. Lapine acknowledged that "the idea" of hiding vegetables in food is not copyrightable, but stated that her instructions for making purees in advance, storing them for future use, and then using them in specially created recipes is a copyrightable expression of an idea.

The Court disagreed and found that Lapine's instructions were too abstract and failed to rise to the level of a copyrightable expression of an idea.

Lapine stated that the cookbooks have "a similar organization, pattern, structure, and sequence." The Court found that these alleged similarities are shared by cookbooks as a particular genre of books and especially those cookbooks encouraging children's healthy eating.

Then the Court continued with its cookbook review of sorts and examined the look and feel of the two cookbooks. Lapine's cookbook was described as "dry" and "text-heavy." Ouch! That's definitely not the kind of review that I have in mind when I engage in my own cookbook fantasy. According to the Court, "The Sneaky Chef" has "black, grey and shades of brownish-orange" along with very few pictures and a tone that is "less collegial that than it is informative and lecturing."

Seinfeld's cookbook is said to have a very different tone and feel – "bright and cheerful, full of different colors and various patterns." "Deceptively Delicious" contains many color photos and most recipes include commentary from the author that relate to her family and other mothers. There is a less formal tone, making it a more community oriented and inclusive work.

These differences helped convince the Court that there was no substantial similarity of copyrightable material between the two works. The Court also looked at a trademark claim.

Again, winning a trademark infringement claim is not easy to do:

  • Plaintiff must show that they have a protectible mark.
  • Plaintiff must show that Defendant's actions are likely to confuse consumers as to the source or sponsorship of Plaintiff's product.
  • Plaintiff must show a "probability of confusion" and not a mere possibility of confusion.

The Court compared the marks of both cookbooks and found little if any possibility of confusion. It looked at the cover of the cookbooks, words and images, and found very different drawings, colors, cover layout, patterns and fonts. In addition, the name "Seinfeld" on the cover further decreased the chance for confusion.

So, for those of us food bloggers with cookbook fantasies dancing around in our heads or those lucky ones who are working on cookbooks now, these are some things to think about. I'm getting very excited about BlogHer Food '09 and look forward to meeting those of you who will be attending.

* Nothing in this blog post constitutes legal advice. This is my interpretation of Judge Swain's Opinion & Order. General legal issues and concepts are examined. Each person's situation is different. An attorney should be consulted for legal advice relating to a unique set of circumstances.

**I have not read, seen, reviewed, or cooked from these cookbooks myself.

*** 2009 WL 2902584 (S.D.N.Y.)


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