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The Sneaky Chef Loses Appeal

By Stephanie Robinson

In Lapine v. Seinfeld, 2010 WL 1688713 (N.Y.C.A. 2010), plaintiff Missy Chase Lapine and The Sneaky Chef, Inc. (?Lapine?) appealed from a summary judgment awarded to defendants Jessica Seinfeld and others on plaintiffs' claims of copyright infringement, trademark infringement, and trademark dilution. The district court determined that Seinfeld?s book Deceptively Delicious: Simple Secrets To Get Your Kids Eating Good Food, was not substantially similar to plaintiffs' cookbook, The Sneaky Chef: Simple Strategies for Hiding Healthy Foods in Kids' Favorite Meals, released four months earlier. The court affirmed the district court?s findings. Lapine contended the district court erred when it decided Seinfeld?s book was not substantially similar to Lapine?s book. Both cookbooks provide information related to tricking children into eating healthy foods by including pureed vegetables in other foods. Lapine claimed the two works are substantially similar in their unique and innovative expression of the idea of sneaking vegetables into children's food by means of a cookbook containing comprehensive instructions for making and storing a variety of vegetable purees in advance, and then using the purees in specially created recipes for children's favorite foods. The court determined that the standard test for substantial similarity between two items is whether an ordinary observer, unless he set out to detect the disparities, would be disposed to overlook them, and regard the aesthetic appeal as the same. When, as in this case, a work incorporates unprotected elements from the public domain, the court should 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. The court stated that stockpiling vegetable purees for covert use in children's food is an idea that cannot be copyrighted. The Copyright Act does not protect ideas. It protects expressions of ideas. To the extent the two works have general and abstract similarities-including their vaguely similar titles and inclusion of illustrations of prepared dishes, health advice, personal narrative, descriptions of how to make purees, instructions for preparing dishes, and language about children's healthy eating-the district court correctly concluded that these elements do not raise a fact issue for trial because they are ?scènes à faire,? or unprotectable elements that follow naturally from the work's theme rather than from the author's creativity. The two books lacked the substantial similarity required to support an inference of copyright infringement. Lapine also contended the district court erred by failing to apply an eight-factor test in Polaroid Corp. v. Polaroid Electronics Corp., 287 F.2d 492, 495 (2d Cir.1961) when it rejected Lapine?s trademark infringement claims. The court ruled that a district court need not slavishly recite the litany of all eight Polaroid factors in each and every case. The Court of Appeals considered the overall impression on a consumer and the context in which the competing marks are displayed and reached the same conclusion as the district court: the marks are not confusingly similar. Defendant?s cover art was much more detailed than plaintiff?s, though the two drawings incorporated similar themes. Additionally, Defendant Jessica Seinfeld?s use of the famous ?Seinfeld? name reduces any likelihood of confusion with Lapine?s marks. The court affirmed the district court?s dismissal of Lapine?s trademark dilution claims for the same reasons. If you have been accused of copyright or trademark infringement, you should seek counsel experienced in resolving such disputes.

Full post as published by Business and Technology Law on July 08, 2010 (boomark / email).