http://www.thesmokinggun.com/archive/years/2008/0107083seinfeld1.html

The copyright claims can only be described as a steaming pile of carrot puree. The complaint cites things that can’t even be copyrighted – e.g., key “hidden” ingredients in recipes – and points to allegedly similar passages that simply don’t strike me (under the “ordinary observer” test) as not sufficiently similar. If this survives a motion to dismiss, I’d be surprised, even given the fact-based questions here.

The defamation issues are outside my zone of expertise, since I don’t really understand Torts, but I think there’s no way around the fact that 1) Lapine is a public figure, so NYT v. Sullivan’s standard applies, and 2) Seinfeld’s comments are hyperbolic opinion – no reasonable person would think that the unhappy cookbook author is actually an assassin.

I’m actually thinking of strengthening what I wrote in my original post.

I agree with this, and it is what I was trying to say. One defense here is that there was no access – these similarities seem to rebut that a lot.

I also agree that it is a relatively thin copyright, but I think the similarities are enough to argue to a jury where the publisher declined the book by Lapine.

I would also make the “breach of confidence” argument in California for “concept stealing” if I were the plaintiff.

My take remains that the copyright in the Lapine cookbook is “thin” – likely limited to explanatory text and, perhaps, the exact selection and arrangement of recipes. I’d need to see the Seinfeld book, but I would be surprised if it was close enough to infringe. And “secret ingredients” might be protected by patent, but it’s clearly out in terms of copyright law. Even if Seinfeld deliberately copied the recipes, with secret ingredients, from Lapine, there’s still no infringement under Feist.

But I need to read the complaint before snarking further.

There is no allegation that the recipes are identical, just that the “secret” ingredients in 11 specific recipes were the same. I don’t know how many recipes were in the cookbook, but I assume that it has many times that amount. That certainly seems more like a coincidence than “very good evidence of access and copying of the other copyrightable elements.”

The bulk of the complaint focuses on similarities in concept and the use of a few common phrases in the two books. Having five children of my own, it is not surprising that two cookbooks discussing getting children to eat healthy food would talk about “begging” kids to eat certain foods and the “power struggle” that goes on at the table. In fact, it is hard to imagine a cookbook on the topic that would not use those terms since the premise of the book is getting kids to eat “foods that kid’s won’t go near” (which term the complaint also seems to believe is something unique, since they lambast Seinfeld’s book for using the similar term “foods my kids wouldn’t touch).

I wonder, do the lawyers who drafted the complaint have kids?

While I think it is a tough case, I think it is far from Wacko – there is a strong “structure, sequence & organization” argument as well as a “look & feel” argument based on the allegations that make it look like the second cookbook is more than just an idea knock-off. I think this is not an easy summary judgment for the defendant here.

While it is true that “ideas” in recipes may be copied, the striking similarity between some of the recipes, as well as the 1 to 1 correspondence between the “secret ingredients” iin each recipe is very good evidence of access and copying of the other copyrightable elements. Similarly, the allegations that the Seinfeld publisher had access and acted duplicitously is pretty good if true – apparently Harper Collins told Lapine that cookbooks were losers in the market, yet a few months later came out with a cookbook that is in many ways similar to the exact cookbook it rejected. I was surprised that Collins wasn’t a named defendant.