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Tag: defamation

  • Resolution of Seinfeld-Lapine Cookbook Lawsuit

    I blogged about the Seinfeld-Lapine cookbook spat when Missy Chase Lapine, author of The Sneaky Chef, first filed a copyright and trademark lawsuit against Jessica Seinfeld, author of Deceptively Delicious and wife of comedian Jerry Seinfeld. My predictions for the case came true. I love when that happens!


    Courts Grant Summary Judgment to Seinfeld on Copyright and Trademark Claims

    First, the court confirmed that hiding vegetables in foods children enjoy is a basic idea and copyright does not protect basic ideas. Copyright infringement requires substantial similarity and the court found none between The Sneaky Chef and Deceptively Delicious. Lapine argued that the cookbooks have a similar organization, pattern, structure, and sequence in that both books have

    • a cover and title conveying a concept of secretly getting children to eat healthy foods
    • an introduction or forward by a doctor
    • a personal narrative by the author describing her struggle, revelation, recipe testing and effects
    • a discussion of appliances
    • a list of essential ingredients
    • instructions for making the purees in advance and storing them for later use
    • a collection of individual recipes using those foods

    However, the court found all these elements to be stock elements of cookbooks (i.e., they are elements one would naturally expect to find in a cookbook) and as such, copyright does not protect them.

    The look and feel of the two books also differed in several ways. According to the court:

    • Deceptively Delicious lacks the extensive discussion of child behavior, food philosophy, and parenting that pervades The Sneaky Chef.
    • The Sneaky Chef uses primarily black, gray, and shades of brownish orange while Deceptively Delicious employs bright colors and more photographs.
    • The Sneaky Chef assumes greater familiarity with cooking, recommends thirteen methods for hiding healthy foods, and provides recipes for multiple-ingredient purees, Deceptively Delicious instructs readers about only single-ingredient purees and contains more basic instructions.

    The court also made short work of the trademark infringement claim finding that the images used on each of the cookbook covers were not similar.


    Court Does Not Grant Summary Judgment on the Defamation Claim

    In my previous posting on this matter, I predicted that Lapine’s defamation claims against Jerry Seinfeld for remarks Seinfeld made on the Late Show with David Letterman were actually stronger than her copyright and trademark claims. Note that the court allowed the defamation claim to stand. I don’t know the status of that claim but I would not be surprised if the Seinfelds ultimately prevail on the defamation claim. It’s just going to take longer.


    Some Consolation for Lapine

    Even though Lapine has lost most of her lawsuit, she can take some consolation that her book is outpacing Seinfeld’s in the marketplace. The last time I checked, Amazon ranked Lapine’s The Sneaky Chef at 1,183 in books and Seinfeld’s Deceptively Delicious at 8,740 in books.

  • Can You Use Real People in Your Book or Film?


    I’m often asked by writers and producers if it’s okay to talk about real people in a book, film, or other
    creative project – if the names are changed.


    Changing the Names Is Not Sufficient


    “Do the names need to be changed?” is not the best question. The more relevant question is whether the real
    people mentioned in your creative work are identifiable. You can identify someone even without using
    the person’s real name. For example, your readers or viewers might be able to identify the person through
    your mention of a nickname, geographic location, physical description, personality trait, or real-life events
    in which the person was involved.


    If readers and viewers can identify the person discussed in your work, there is potential risk for defamation,
    privacy, and related claims. You should assess that risk and make your best efforts to minimize it.


    Calculating the Risk of Using Real People


    Your risk assessment will depend on several factors such as

    • How did you acquire the information about the person?
    • Are you adding fictional elements to any of the real-life events discussed?
    • Are the portrayals flattering?
    • Are the portrayals accurate?


    Your risk assessment also depends on whether the people in your story are public figures or private individuals.
    Public figures have fewer privacy rights but stronger publicity rights. Also, to make a successful defamation
    claim, public figures must prove you made the false statement with actual malice. In contrast, a private
    individual need only prove you were negligent in making the false statement. While the distinction between
    actual malice versus negligence may sound like legal gobbledygook, the distinction often plays a pivotal role
    between winning and losing a defamation lawsuit.


    My book, The Permission Seeker’s Guide Through the Legal Jungle, offers an in-depth discussion of
    defamation and privacy issues from the perspective of authors and other creative producers who want to stay
    out of trouble. The book also offers guidelines for minimizing the risk of defamation, privacy and similar
    claims through the use of annotated manuscripts, disclaimers, releases, and life story rights agreements.
    You can view the full table of contents for The Permission Seeker's Guide Through the Legal Jungle here.

  • Joe the Plumber: Unhappy With Some Media Coverage But Has Slim Chance of Success on Defamation and Privacy Claims

    Poor Joe the Plumber, aka Joe Wurzelbacher.  He’s the Ohio citizen who was repeatedly mentioned during Senators Obama’s and McCain’s third presidential debate on October 15.

     

    Mr. Wurzelbacher’s questioned Obama about income tax policies during a political rally and the exchange was caught on tape.  During the presidential debate, McCain referred to Mr. Wurzelbacher to illustrate the distinctions between the McCain and Obama tax plans.  Not only did both presidential candidates invoke Mr. Wurzelbacher’s name several times during the debate, each candidate also looked into the camera and spoke to Mr. Wurzelbacher directly throughout the evening.

     

    The result.  Instant fame for Mr. Wurzelbacher.  At least fifteen minutes of it.  While his new-found fame may have an upside, the downside includes some unflattering comments made about Mr. Wurzelbacher in the media as well as media discussion of personal information Mr. Wurzelbacher would probably prefer not sharing with the nation.

     

    Even if some of the unflattering comments were false and potentially defamatory, Mr. Wurzelbacher probably wouldn’t have much luck pursuing a defamation, privacy rights violation, or similar claim. That’s because Mr. Wurzelbacher’s surprise guest appearance at the presidential debate has made him an involuntary limited purpose public figure.  A limited purpose public figure is someone who is thrust to the forefront of a particular controversy or public matter.  That thrust sometimes happens by accident or contrary to the wishes of the individual.

     

    As an involuntary limited purpose public figure, Mr. Wurzelbacher is held to the same standard as a public figure with respect to any statements on subjects relevant to the controversy or public matter.  For Mr. Wurzelbacher, those subject areas likely include politics, his tax and financial situation, and his job as a plumber.  The public figure standard means Mr. Wurzelbacher would need to show any defamatory statements made about him were made with actual malice.  In contrast, if he were considered to be a private citizen for defamation purposes, he would need to meet the much lower standard of showing that the media was negligent in making any defamatory statements.

     

    There's a good chance any private or embarrassing facts released about him or violaitons of his privacy are "okay" per the First Amendment. 

  • The Sneaky Chef versus Deceptively Delicious. Defamation Charges Against Seinfeld Stronger Than Copyright Charges.

    In
    a previous posting discussing copyright protection for recipes,
    I mentioned the copyright infringement and defamation lawsuit against Jessica
    and Jerry Seinfeld filed by Missy Chase Lapine.

    Lapine’s Copyright
    Claim

    Lapine
    is the author of The
    Sneaky Chef: Simple Strategies for Hiding Healthy Foods in Kids’ Favorite Meals    . Jessica Seinfeld is the author of Deceptively Delicious: Simple Secrets to Get Your Kids
    Eating Good     Food. In the lawsuit, Lapine claims Deceptively
    Delicious     infringes The Sneaky Chef.

    (more…)