A Delicious Decision in the Jessica Seinfeld Cookbook Case
by Anali

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.)

Submitted by Anali (view blog) on Thu, 09/17/2009 - 5:03pm

Comments

 

Great post!

Looking forward to seeing you!

Kalyn Denny
Kalyn's Kitchen

Submitted by Kalyn Denny on Fri, 09/18/2009 - 19:59
 

Thank you!

Looking forward to seeing you again too Kalyn!


 


Anali's First Amendment

Submitted by Anali on Sat, 09/19/2009 - 07:36
 

Thanks for a great post.

Thanks for a great post.  It was so interesting to learn more about the  legal aspects of this "veggie plagiarism" lawsuit  From a nutrition standpoint, I objected to the message it sent.  I wrote a few posts on this "stealth" tactic to get kids to eat vegetables on Nutrition Unplugged. 

Submitted by Jhelm on Mon, 09/21/2009 - 16:54
 

Interesting

Thanks for posting about the results of this lawsuit.  I had forgotten about the plagiarism aspect and thought it was just another ploy at getting more attention ;-)

Because I teach children how to cook healthy and seasonal foods, I wasn't thrilled with the premise of either of these two books.  A few of my posts about these books were the most visited on my entire blog...which shows that people are definitely passionate about how they feed their families (and the judgement that comes with it.) 

I loved that both of these books aimed at getting families to feed their children healthy foods.  But I really disliked that they used dishonesty to achieve that goal.  If an ingredient has to be hidden, you imply to children that it is too gross to eat intentionally.  Is that the message we want to give our kids?  Plus, by the time the purees are mixed into the food, very little seems to get into each individual portion.  Why not just include kids in the shopping and cooking experience - and let them learn how the foods taste, instead of masking them with other ingredients?

My daughter is very picky, and isn't eager to try the seasonal produce that I so clearly enjoy.  But she wants to like the foods that bring the rest of us so much culinary delight - she is just doing it on her own timeline.  And since I am not pressuring her, she most likely will enjoy them sooner than later.

I hope to meet you at BlogHer Food!  Thanks for the post.

Michelle Stern

What's Cooking: Cooking Classes and Community Service with Children

www.whatscooking.info

What's Cooking Blog: Cooking with Kids for a Healthier body, planet and community
www.whatscookingblog.com

Submitted by mamamich on Mon, 09/21/2009 - 19:54
 

Healthy food - Hidden?

Thanks for the information about this suit.  got to admit, I have that fantasy about publishing a cookbook, and this will certainly guide my structure.

But the idea that you have to hide foods in what looks like conventional food just to get nutrition into kids?  Why in the world would we want to accept that our children are stupid enough to believe that? 

One of my daughters can tell me down to the various flours what I used in a recipe.  She lets me know which flour combination works and what doesn't work.  

One reason she has such an amazing palate is because she has been fed real food prepared simply since she first tasted food.  I want her to know the difference between perfectly ripe peaches and canned.  I want her to know that tomatoes in August are vastly different than tomatoes in April.  Best of all I want her to know where it all comes from and how it was raised.

So she chooses to eat local, organic or no spray foods because they taste better.  She eats gluten free because she can tell how her body feels when it gets glutened, and doesn't like it. 

The children of the world will make difficult choices throughout their lives, shouldn't they at least start with what goes into their bodies?

Dr. Jean Layton- Doctor and Chef thriving with a Gluten-Free Life

Submitted by GFDoctor on Tue, 09/22/2009 - 08:49
 

"Veggie Plagiarism"

jhelm - Love that phrase and thanks for the kind words!


I agree with you that resorting to this "stealth tactic" doesn't seem like the best option.


 


 


Anali's First Amendment

Submitted by Anali on Tue, 09/22/2009 - 10:46
 

Exactly!

michelle - I'm glad you enjoyed the post!


"If an ingredient has to be hidden, you imply to children that it is too gross to eat intentionally."


I really agree with you on that statement. I don't have kids, so I don't personally know all the trauma that parents go through to get their children to eat vegetables.  But I think most children want to learn about everything and are naturally curious. That translates to food too. 


What you said about including kids in the cooking and shopping experience, and learning about taste seems like a better way to do it. 


I'm looking forward to meeting you too! : )


 


Anali's First Amendment

Submitted by Anali on Tue, 09/22/2009 - 10:54
 

Gluten Free

gfdoctor - I'm so glad that you brought up gluten free issues. It's important that people know exactly what they're eating, because there are real health consequences to not being aware. I think it's good for kids to know what they're eating from an early age.


"She eats gluten free because she can tell how her body feels when it gets glutened, and doesn't like it." 


That statement about your daughter is really something to think about. If kids aren't aware of what they're eating, then how can they let their parents know how it makes them feel after?  Great points!


Anali's First Amendment

Submitted by Anali on Tue, 09/22/2009 - 11:04
 

I just had to third this:

Again, agreed completely -

"If an ingredient has to be hidden, you imply to children that it is too gross to eat intentionally."

Now, I CAN see using such a cookbook here and there. I know kids will sometimes go through inexplicably picky periods. I can understand feeling desperate on day 5 of insisting on only eating starch. But I do think that using this long term & regularly is pretty counterproductive.

Interesting notes on the legal situation! I admit I felt pretty bad for the author of the original book when a celebrity (well, essentially) came out with such a similar book, only snazzier and prettier. Good to look at the whole situation objectively, now!

Fabulously frugal recipes - for foodies.

 


Submitted by fabfrugalfoodie on Wed, 09/23/2009 - 10:58
 

Third time's the charm!

fabfrugalfoodie - Thanks for chiming in!  I can imagine that Ms. Lapine was not to thrilled to hear how her book was described. On top of the Opinion not going her way.  It did make for some interesting reading for me though!

Anali's First Amendment

Submitted by Anali on Wed, 09/23/2009 - 20:10
 

premise of "hiding" veggies

just want to chime in with a little defense of the veggie puree approach.

I have jessica seinfeld's cookbook and like it...the recipes I've used are tasty.  in defense of the tactic and as a mother of 2 young children who can get quite picky...Jessica Seinfeld still advocates giving your children the veggies on the side. and the children do not necessarily know that the pureed veggies are in other foods on the plate. It's more of an "insurance" policy - you know your kids are getting those nutrients in, even if they don't eat their side of broccoli. exposure IS key for kids - the more you give them something the more likely they'll eat it, so of course I believe you should be giving kids their veggies, even if there is a puree in the mac & cheese.  that said, I don't think hiding veggies in food is a bad thing...as long as your kids don't know you're doing it and you are still exposing them to those vegetables in a traditional way. 

plus, I like adding the veggie purees to recipes for my own well being (and I do eat my veggies!). I love it whenever I can punch up the nutritional factor of a recipe. 

thanks for the post! I too had forgotten about the case and was interested in the outcome! :)

Submitted by janeymay720 on Sun, 09/27/2009 - 19:46
 

Hiding Veggies

janeymay720 - Thanks for the comment! I'm glad to know that she still advocates having veggies on the side, so kids will get used to eating them.   And glad to know that you were interested in the outcome of the case! : )

Anali's First Amendment

Submitted by Anali on Mon, 09/28/2009 - 21:17