Advertising Law Blog

This time it appears Jessica Seinfeld, wife of comic Jerry Seinfeld, is getting the last laugh. On September 10, 2009, the United States District Court, Southern District of New York, dismissed all federal copyright, trademark and unfair competition claims brought against Seinfeld by fellow author, Missy Chase Lapine alleging Seinfeld's "Deceptively Delicious" cookbook copied her cookbook, "The Sneaky Chef," both of which discuss ways in which parents may camouflage nutritious foods in their children's meals making for a healthier overall dish. See Lapine, et al. v. Seinfeld, et al., No. 08 Civ. 128 (LTS) (S.D.N.Y. Sept. 10, 2009).

The court held that under federal copyright laws, the defendant had not actually copied plaintiff's work and plaintiff could not show substantial similarities of protectible elements that would be discernible to the ordinary observer within the meaning of copyright law. Judge Laura Taylor Swain ruled that the majority of the elements of both books were not expressions that are protected. Any organizational, structural, or sequential likeness was due to the medium of expression used (cookbooks) or to the similar subject matter that both cookbooks address (hiding vegetables foods children enjoy). The use of similar ingredients and instructions were purely stock elements of the subject matter and are not protectible.

In addition, the court found that the totality of the books and their overall feel was highly dissimilar to the ordinary observer. Lapine, having been a chef, added much more professional discussion to her work, while "Deceptively Delicious" had a much more familial tone and feel.

The court also granted summary judgment on plaintiff's trademark infringement claim, finding no ordinary prudent person would be misled by the products since they are so dissimilar. Lapine's book was white with the lettering in blue and the word sneaky in bold and orange while Seinfeld's cover was a drawing of a woman holding cookies in her kitchen with supplies. The Seinfeld name prominently displayed on the cover likely would help to avoid confusion as well.

Lapine's unfair competition claims were likewise dismissed where the court found that there was no likelihood of confusion, and that the defendant did not misrepresent her, or the other party's, goods.

Since the federal claims were dismissed, the court declined to exert supplemental jurisdiction over plaintiff's state law defamation claim against Jerry Seinfeld and plaintiff's state law claims for injury to business reputation.