Definitively Dismissed: Simple Strategies for Successfully Defeating a Copyright Claim

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I have a two year old daughter at home that won’t eat. I mean, she’ll eat chocolate chip pancakes, but not chicken, or broccoli, or anything that might actually cause her to grow. If only I’d known earlier that the secret to Alyssa’s healthy eating was putting the chicken and broccoli inside the chocolate chip pancakes.

Sneaky? Maybe. Deceptive? Perhaps. Protectable? No.

That’s the conclusion the Second Circuit Court of Appeals reached in a case brought by Missy Chase Lapine, author of The Sneaky Chef: Simple Strategies for Hiding Healthy Food in Kids’ Favorite Meals. She was upset to learn that another book about tormenting kids with secretly-placed vegetables had been published after hers. The offending book is called Deceptively Delicious: Simple Secrets to Get Your Kids Eating Good Food. No doubt adding to Lapine’s outrage was the fact that Deceptively Delicious was written by Jessica Seinfeld, wife of Jerry Seinfeld, he of the $32 million East Hampton home and 20-car garage. Jerry Seinfeld himself only added fuel to the fire when, during a Letterman appearance, he called Missy Chase Lapine a “nut job” and pointed out that, throughout history, many three name people become assassins.

And cue lawsuit.

Lapine filed a complaint for copyright and trademark infringement against Jessica Seinfeld and her publisher, claiming that “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.” True to her name, the Sneaky Chef also managed to slip a defamation claim against Jerry Seinfeld into her complaint for good measure.

The lower federal district court dismissed the copyright and trademark claims and declined to rule on the defamation claim on the ground that it arose under state law. Last month, the Second Circuit appellate court affirmed the district court in an unpublished opinion.

Copyright Law 101 (for you purists, it’s actually section 102(b)) tells us that copyright does not protect an idea, but only the particular expression of an idea. While determining where an idea ends and expression begins is often a difficult exercise, the Second Circuit drew the line at hiding liquid vegetables inside Chicken McNuggets, ruling that “Stockpiling vegetable purees for covert use in children’s food is an idea that cannot be copyrighted.” The court also found that after ignoring unprotectable ideas and other unoriginal elements, the “total concept and feel” of the works was not “substantially similar” — which is just a bunch of legalese for “your book about hiding healthy food is different than the other person’s book about hiding healthy food.”

The court also threw out Lapine’s trademark claim, unconvinced that the drawings of the sneaky women on the covers were confusingly similar. Yes, the chefs in both drawings seem to be saying “Hey, don’t tell anyone I’ve secretly replaced the chocolate in my kids’ brownies with mushed up carrots,” but the bottom line is that they really don’t look the same.

All that now remains of Lapine’s original case is her defamation claim against Jerry Seinfeld, which she is now pursuing in state court. Of course, while we wait for that case to be resolved, toddlers around the country are quietly preparing the class action lawsuit that will stop the rampant, unchecked food adulteration committed at the hands of their mothers.

Stay tuned.

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