Seinfeld Sued: Will "Sneaky Chef" Author Missy Chase Lapine Succeed In Her Suit Against Jerry and Jessica Seinfeld?

By JULIE HILDEN
Tuesday, Jan. 15, 2008

On January 7, cookbook author Missy Chase Lapine sued comedian Jerry Seinfeld and his wife, Jessica. Lapine claims that Jessica's cookbook infringed Lapine's copyrights and trademarks with respect to a very similar cookbook she had previously written.

Lapine also alleges that when the parallels between the two books came to light, Jerry added fuel to the fire by slandering her.

Will Lapine's suit succeed? In this column, I'll assess her chances of prevailing.

The Facts Of The Complaint

In 2006, Lapine sent two proposals for her book The Sneaky Chef: Simple Strategies for Hiding Healthy Foods in Kids' Favorite Meals, including several chapters of the book, to HarperCollins. However, HarperCollins twice rejected the book. Ultimately, a different publisher said yes. Lapine's book, published in April 2007, became a New York Times bestseller.

Lapine then heard about Jessica Seinfeld's book, prior to its publication. It was to be published by the same publisher, HarperCollins, that had rejected Lapine. Lapine's attorney sent a letter to HarperCollins, complaining that Jessica's book infringed Lapine's copyright, and that its proposed cover infringed Lapine's trademark in her cover's image of a winking chef with carrots behind her back.

HarperCollins maintained that Jessica's book was completely original, but nevertheless made two pre-publication changes to Jessica's book: It removed the word "Sneaky" from Jessica's subtitle, and removed the carrots in the cover image from the chef's hand. (The carrots appeared instead on a cutting board.)

In October 2007, Jessica published Deceptively Delicious: Simple Secrets to Get Your Kids Eating Good Food, to great success.

Accusations of plagiarism followed, and Jerry Seinfeld addressed them on "Late Night with David Letterman" and also on E! News. Specifically, Jerry claimed on "Letterman" that the two books had come out "at the same time," which was untrue. He also said Jessica "never saw" or "read" Lapine's book.

Moreover, Jerry called Lapine "angry and hysterical" and a "wacko" who had "waited in the woodwork" to "spring out" to attack Jessica, and paralleled her to the unbalanced persons who had targeted Letterman himself. Finally, Jerry played on Lapine's having three names, commenting that so do many famous assassins such as Mark David Chapman, John Lennon's killer. (Interested readers can find the whole exchange on pages 15 to 17 of the complaint.)

Assessing The Copyright and Trademark Claims

The first thing to understand about the copyright and trademark claims is that they are much weaker than they may seem at first glance.

The copyright case is weak because it appears to focus more on the concept of the book than its actual words. Copyright law protects not ideas, but rather their expression, and only their expression in a fixed, tangible medium. Thus, even assuming that Jessica or (more likely) HarperCollins did, in fact, steal Lapine's idea, that would be a moral wrong, not a legal one.

The legal wrong would occur if Jessica had copied the specific way in which Lapine chose to express her ideas. Moreover, on this point, Lapine's case seems fairly weak, based on the complaint she filed.

While Lapine and Jessica Seinfeld did make several similar points in the introductions to their respective books, many of those points were obvious: Kids are obese; they eat too much sugar; it would be great if they ate more vegetables; they don't want to eat vegetables; and the best way to sneak vegetables into foods kids do like, such as brownies, is by pureeing them and adding them into the mix. This final point seems especially obvious: No child will be fooled by a Brussels-sprout-topped brownie, but a puree's ingredients can be obscure and the puree itself can virtually seem to disappear into the dish.

Moreover, while some wording is common between the two books - as noted on pages 9 through 12 of the complaint, a lot of the phrases are clichés or obvious choices. Phrases that are clichés, or in common usage, are hardly the kind of specific, unique forms of expression that copyright aims to protect.

It would be an interesting experiment to ask each of ten American chefs who were unaware of this controversy to write an introduction to a book of this description, designed to reach a wide audience of parents. My guess is that virtually every one of the ten would refer to the "whole family," to "begging" and "coercing" kids to eat vegetables, to the hope for "peace" at the dinner table, and to the whole conflict as a "power struggle" - the very supposed telltale signs of copyright infringement cited in Lapine's complaint. Similarly, so many parents talk about the "battles" they have with their children that this is what George Orwell would call a "dead metaphor," one so common we barely notice it.

Generally, cookbook introductions are not great works of art, so it is much less surprising to hear that Lapine's and Seinfeld's introductions sound very much the same than it would be to hear, say, that the first chapters of Philip Roth's and Joyce Carol Oates's new novels sounded very much the same.

Lapine's complaint is stronger when it gets down to the particular recipes, noting eleven instances where the same vegetable was used in the same recipe. However, there's a good reason why many chefs grumble about recipe-stealing, and virtually never actually sue: It's very hard to fit recipe-stealing into copyright law, especially if any changes are made or if only an isolated recipe, or a handful of them, is being targeted. Also, one recipe may represent only a small part of total cookbook revenues in a cookbook comprised of many recipes, limiting the damages that will be awarded. Finally, many vegetable choices will obviously be a poor match with certain treats, due to their strong flavor or poor match with the overall flavor or color of the dish.

Lapine's attorneys tried to circumvent these problems with each of the two components of her case - the introduction, and the recipes - by essentially asking the court to view all the examples it gives as together amounting to an overall case for infringement.

The implicit idea in the complaint is that many relatively weak instances will add up, in the aggregate, to a compelling case. But it isn't so. In theory, lots of infringements might add up to an overall powerful case and increase damages, but each would have to really be an infringement, not just a near-miss.

No Soup For the Trademark Claim Either

What about the trademark case? It too is weak, but for a very different reason: The complaint cites the book's "overall look and feel," a common trademark law concept. However, the covers of the two books really do have quite different looks and feels. Trademark liability turns on "likelihood of confusion," and few shoppers would mix up the books based on their cover images. (For interested readers, here is Lapine's and here is Jessica Seinfeld's.)

To begin, Lapine's picture is prominent on her cover, with a smaller, abstract image of a chef next to it. In contrast, Seinfeld's cover has a retro feel and a more realistic depiction of a suburban mom cooking. If a reader were to confuse the two books, which is certainly possible, the source of the confusion would probably boil down to the common idea animating both, not to any similarity between the look and feel of the cover images.

In sum, Lapine's case may sound strong, but actually is much weaker than it seems.

Still, some judges may smell a rat in the fact that HarperCollins, institutionally, knew about both books. This raises the possibility that the plagiarist, if there was one, may not have been Jessica Seinfeld herself, but rather, one of her editors or assistant editors who made suggestions or even simply wrote the text of the introduction, as frequently occurs with celebrity books. Whether they formally employ a ghostwriter or hire a collaborator to interview them and craft the book, celebrities typically do not write their own books - though, of course, there are exceptions.

It will be interesting to learn whether the very same editors and assistants who were involved in turning down Lapine's book proposal were involved in accepting Jessica's. Even if that is the case, however, it still isn't the kind of smoking gun that seals guilt. Again, ideas are not copyrighted; expressions are. Importantly, too, a rational editor could pass on the same idea while presented by the much less well-known Lapine, and jump at it when proposed by Jessica Seinfeld, without any secret plagiarism plan to victimize Lapine. Rather, the editor might simply know that Jerry Seinfeld's prominence and Jessica's connections could result in far more high-profile, positive publicity. While the fact that famous people and their spouses have better access to publicity may be unfair, it's far from illegal.

Hello Jerry: The Defamation Claim

The defamation claim is brought against Jerry, but not Jessica, Seinfeld. Ironically, this claim may be a little stronger than the underlying copyright claims against Jessica, though it still is weak. Jerry Seinfeld essentially turned the whole incident into a comedy routine, but comedy still makes statements, and slander consists of a damaging false statement made with the legally-required state of intent. (I discussed the issue of comedic slander previously, in a column regarding the "South Park" episode strongly insinuating that Tom Cruise is gay, but the cartoon context there added to the sense that no real statement, in the sense defamation law requires, was being made.)

Nevertheless, Jerry's terming Lapine a "wacko" may well be covered by the well-established First Amendment exception for "rhetorical hyperbole" - essentially, overstatements, often using colorful language, that are made for effect. It seems overstated to call this term an "imputation of mental illness," as the complaint does. What's next, a suit based on calling someone a "hipster doofus," "freak," or "weirdo"?

Still, it doesn't help Jerry's case that he implicitly compared Lapine to David Letterman's stalker, who was truly dangerous and unbalanced. Nor does it help that his comments slid back and forth from a serious defense ("my wife never saw the book, read the book, used the book") to humorous riffing. Pure riffing, without the reference to Letterman's stalker, would have been grounds for a much more ironclad "rhetorical hyperbole" case, but the mixture makes the case more complex, and decreases the chances it will quickly be dismissed for lack of legal merit.


Julie Hilden, who graduated from Yale Law School, practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99. Hilden is also a novelist. In reviewing Hilden's novel, 3, Kirkus Reviews praised Hilden's "rather uncanny abilities," and Counterpunch called it "a must read.... a work of art." Hilden's website, www.juliehilden.com, includes free MP3 and text downloads of the novel's first chapter.