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____________________________________________________________________________________________ Portfolio Media, Inc. | 648 Broadway, Suite 200 | New York, NY 10012 | www.law360.com Phone: +1 212 537 6331 | Fax: +1 212 537 6371 | [email protected] ________________________________________________________________________ Yada, Yada, Yada: A Cautionary Tale Friday, Apr 04, 2008 --- In October of last year, Jessica Seinfeld – the wife of über-celebrity Jerry Seinfeld – published a cookbook entitled “Deceptively Delicious: Secrets to Getting Your Kids Eating Good Food.” In the book, Mrs. Seinfeld offers recipes that conceal purees of vegetables that children typically resist eating – like spinach and cauliflower – as ingredients in the grilled cheese sandwiches, pizza and brownies that kids usually prefer. Shortly after the book came out, stories began to circulate that Jessica Seinfeld’s book was strikingly similar to a previously-published cookbook called “The Sneaky Chef: Simple Strategies for Hiding Healthy Food in Kids’ Favorite Meals” by Missy Chase Lapine. Both books advocate many of the same very unusual combinations of vegetables and kid-friendly food, including hiding avocado in chocolate pudding, white beans in chocolate chip cookies, spinach in brownies, carrots in French toast, and cauliflower in macaroni and cheese. It also was revealed that Ms. Lapine’s book proposal and manuscript had twice been sent to, and was twice rejected by Mrs. Seinfeld’s publisher, HarperCollins. As rumors of plagiarism and copyright infringement swirled, Jerry Seinfeld took to television to defend his wife. Appearing on the Late Show with David Letterman, Jerry described Missy Chase Lapine as an “angry and hysterical” woman who had been “waiting in the woodwork” to “spring out and go wacko” on the Seinfelds. He intimated that she was a celebrity stalker, likening her to an infamous stalker that had threatened David Letterman and his family. He also compared Ms. Lapine to murderers Mark David Chapman and James Earl Ray. On the E! News program, Jerry described Ms. Lapine as “some nut job” who “thinks she invented vegetables.” On Jan. 7, Missy Chase Lapine filed suit against the Seinfelds in the Southern District of New York, asserting claims for copyright infringement and defamation. Ms. Lapine’s chance of success on the infringement claim is not good. The Copyright Act of 1976 allows for the copyrighting of original work of authorship fixed in a tangible medium of expression. 17 U.S.C. § 102(a). _____________________________________________________________________________________________ All Content Copyright 2007, Portfolio Media, Inc. 1 ____________________________________________________________________________________________ The Copyright Act expressly excludes from copyright protection ideas, procedures, processes, systems, and methods of operation. 17 U.S.C. § 102(b). Statements of fact are deemed not to be original, and therefore not subject to copyright. Although the Julia Childs, Rachel Rays, and Emeril Lagasse among us know the creativity involved in cookery, the courts have consistently found otherwise. A recipe is comprised of a list of ingredients and instructions for combining those ingredients to achieve a finished dish. Listings of ingredients have been deemed statements of fact that lack an expressive element deserving copyright protection. “[T]he author who wrote down the ingredients for ‘Curried Turkey and Peanut Salad’ was not giving literary expression to [] individual creative labors. Instead, he was writing down an idea, namely, the ingredients necessary to the preparation of a particular dish.” Publications Int’l Ltd. v. Meredith Corp., 88 F.3d 473, 480-81 (7th Cir. 1996). The Code of Federal Regulations also provides that “mere listing of ingredients or contents” is not copyrightable. 37 C.F.R § 202.1. Similarly, instructions for combining ingredients – even those that are not typically mixed together – are considered to be functional directions for achieving a result, and thus not subject to copyright. Publications Int’l, 88 F.3d at 480; Lambing v. Godiva Chocolatier, 142 F.3d 434 (6th Cir. 1998). Courts have left open whether copyright protection is available to recipes that are woven with original narratives ideas – for example, stories about the chef’s personal experiences preparing or serving the dish. See Publications Int’l, 88 F.3d at 480. For this reason, Ms. Lapine has pled the infringement not only of specific recipes, but also of the overall ‘look and feel’ of her book. Such claims are notoriously difficult to prove, however, absent a word-for-word lifting of original content. Similarly, a compilation copyright would only protect the manner in which Mrs. Lapine had selected and arranged her recipes, and therefore would apply in the unlikely event that Jessica Seinfeld had co-opted all of the recipes and published them in precisely the same order. Jessica Seinfeld seems to have benefited from the courts’ failure to recognize the originality and creativity that can be expressed in the preparation of a meal. Had the Seinfelds simply ignored the accusations, they would likely have faded away. Jerry Seinfeld’s on-air comments, however, have created a cognizable defamation claim. Defamation is defined in Black’s Dictionary as the act of harming the reputation of another by making a false statement to a third _____________________________________________________________________________________________ All Content Copyright 2007, Portfolio Media, Inc. 2 ____________________________________________________________________________________________ person. When the comments are regarding a public figure, then that person also must demonstrate that the statements were made with ‘actual malice’ – knowledge that the statement was false or reckless disregard as to whether it was false or not. Adler v. Conde Nast Publ’n, Inc., 643 F.Supp. 1558, 1564 (S.D.N.Y. 1986). The critical consideration in determining whether somebody is a public figure is if she had taken affirmative steps to attract personal attention or public acclaim. Authors, writing voluntarily and for profit, are generally considered to be public figures at least with regard to activities relating to their authorship. Id. Ms. Lapine is no exception. She acknowledges having gone on a promotional tour in support of her cookbook – albeit with less fanfare than that which accompanied Jessica Seinfeld’s publication. (Mrs. Seinfeld’s appearance on the Oprah Winfrey Show resulted in unrelated controversy when it was revealed that the Seinfelds had gifted Oprah 21 pairs of pricey Christian Louboutin shoes, valued at nearly $20,000, as a thank you for the promotional platform). Even under the heightened standard for public figures, however, Jerry Seinfeld’s comments should be construed as defamatory. Missy Chase Lapine appears to be well-credentialed in the fields of food and nutrition. She received classical culinary training and formerly worked at Eating Well and Gourmet magazines. Her complaint avers that her recipes are the result of years of research that included numerous taste tests, focus groups and consultations with nutritionists, doctors and chefs. Seinfeld’s comments directly attack Ms. Lapine’s competence and professionalism, as well as her sanity. Humor is no defense if the defamatory comments negatively affect the victim’s real-world reputation. Robert D. Sack, Sack on Defamation § 2.4.11 (3d ed. 2007). Ms. Lapine certainly had the right to raise questions about remarkable similarities between her recipes and those in Jessica Seinfeld’s cookbook – and doing so should not cause her to be cast as a “wacko,” “nut job,” or Seinfeld “stalker.” Jerry Seinfeld is known for the line, “Not that there’s anything wrong with that.” In this case, a court might find otherwise. --By Valerie Brand Pipano, Reed Smith LLP Valerie Pipano is a partner in Reed Smith's commercial litigation group, resident in the Philadelphia office. She concentrates her practice on _____________________________________________________________________________________________ All Content Copyright 2007, Portfolio Media, Inc. 3 ____________________________________________________________________________________________ defending patent, trademark and trade secret intellectual property; class actions; securities law; contracts and business torts. _____________________________________________________________________________________________ All Content Copyright 2007, Portfolio Media, Inc. 4.