Jessica Seinfeld wins NY culinary copycat claim

[April 29, 2010]  NEW YORK (AP) -- Jerry Seinfeld's wife did not copy a cookbook author when she released her own techniques for getting children to eat vegetables, a federal appeals court concluded Wednesday.

In a written ruling issued just two days after it heard oral arguments, the 2nd U.S. Circuit Court of Appeals in Manhattan sided with Jessica Seinfeld in her 3-year-old copyright and trademark dispute with Missy Chase Lapine, saying the books were "not confusingly similar."

"Stockpiling vegetable purees for covert use in children's food is an idea that cannot be copyrighted," the appeals court wrote.

Lapine, the author of "The Sneaky Chef: Simple Strategies for Hiding Healthy Foods in Kids' Favorite Meals," sued Jessica Seinfeld over her cookbook titled: "Deceptively Delicious: Simple Secrets to Get Your Kids Eating Good Food." The Seinfeld book was published several months after Lapine's in 2007.

The fight reached a boil when Jerry Seinfeld made light of Lapine's claims during an appearance on CBS' "Late Show with David Letterman" in the fall of 2007, saying Lapine was accusing his wife of "vegetable plagiarism." Lapine's lawyers said Seinfeld, best known for the popular television comedy series "Seinfeld," used his Letterman appearance to launch a "malicious, premeditated and knowingly false and defamatory attack" on their client.

In court papers, lawyers for Jessica Seinfeld had accused Lapine of falsely claiming she invented the idea of hiding fruits and vegetables in children's meals when "countless prior works utilized this very same unprotectable idea," including a 1971 book.

Two appeals judges who participated in the ruling said they made their own comparison, finding that the total concept and feel of the books were "very different."

Seinfeld's book "lacks the extensive discussion of child behavior, food philosophy and parenting that pervades `The Sneaky Chef,'" the judges said.

They also noted that "The Sneaky Chef" used primarily black, gray and shades of brownish orange, while "Deceptively Delicious" utilized bright colors and more photographs.

In a ruling that paralleled a decision last year by a lower court judge, the appeals court said the two cookbooks lacked the substantial similarity required to support a copyright infringement claim. And they said there was no chance of confusion by book buyers.

Howard Miller, a lawyer for Lapine, said he did not expect to appeal Wednesday's ruling, though a separate defamation lawsuit against Jerry Seinfeld for his remarks regarding Lapine and the lawsuit will continue in state court in Manhattan, where it has not yet been ruled on.

"I think this phase of the case is over," Miller said of the copyright and trademark claims.

Seinfeld lawyer Orin Snyder in a statement called Lapine's claims "an abuse of the judicial system."

"Two different courts have now seen through these false allegations, and that is why this case has been definitively thrown out of court," he added.

[Associated Press; By LARRY NEUMEISTER]

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