Seinfeld Cookbook: A Trademark & Copyright Case About Nothing

Cover via Amazon

In Missy Chase Lapine, The Sneaky Chef, Inc. v. Jessica Seinfeld, Jerry Seinfeld, HarperCollins Publishers, Inc. & Departure Productions, LLC (Case No. 09-4423cv), the U.S. Court of Appeals for the Second Circuit last week upheld the trial court's grant of summary judgment to the defendants on the plaintiffs' copyright infringement, trademark infringement, and trademark dilution claims.

Lapine, author of  The Sneaky Chef:  Simple Strategies for Hiding Healthy Foods in Kids'  Favorite Meals, claimed  Deceptively Delicious: Simple Secrets to Get Your Kids Eating Good Foods, written by Jessica Seinfeld, the spouse of comic Jerry Seinfeld,  infringed on Lapine's work. Both cookbooks cracked The New York Times best-sellers list, with Seinfeld's book, which came out four months after Lapine's, capturing the number 1 spot.

The appellate court conducted an independent comparison of the two cookbooks, concluding: "the 'total concept and feel' of Deceptively Delicious is very different from that of The Sneaky Chef."  Foodies may be thrilled by the Second Circuit's observation that "stockpiling vegetable purees for covert use in children's food is an idea that cannot be copyrighted."

In reviewing the standard for deciding if copyright infringement occurred, the Court of Appeals for the Second Circuit decision noted: "When, as in this case, a work incorporates unprotected elements from the public domain, we apply a 'more discerning observer' test, which requires 'substantial similarity between those elements, and only those elements, that provide copyrightability to the allegedly infringed [work]."

Which leads Seinfeld fan "TUOL" to wonder: Why do they call it a "trademark"--there are no marks being traded? And what are they diluting the trademark with?  How do you infringe on a copyright anyway--do you have to stand on it, or can you just make harassing telephone calls?...