New York Supreme Court, New York County, February 23, 2011
- Court grants Jerry Seinfeld’s motion to dismiss defamation claim and grants HarperCollins Publishers’s motion to dismiss breach of implied contract and misappropriation claims in action arising from publication of cookbook about preparing healthy food for kids.
Plaintiff sued book publisher HarperCollins, alleging breach of an implied-in-fact contract and misappropriation arising out of HarperCollins’s publication of a cookbook by Jessica Seinfeld. Plaintiff claimed that HarperCollins stole her idea for a cookbook that instructs readers how to sneak healthy food into children’s diets. After HarperCollins rejected her book proposal, plaintiff released The Sneaky Chef: Simple Strategies for Hiding Healthy Foods in Kids’ Favorite Meals through another publisher in April 2007. In October 2007, HarperCollins published Jessica Seinfeld’s book, Deceptively Delicious: Simple Secrets to Get Your Kids Eating Good Food.
Plaintiff had previously brought a federal action against Jessica Seinfeld and HarperCollins alleging copyright and trademark violations, which a U.S. District Court dismissed on summary judgment. See Lapine v. Seinfeld, 2009 WL 2902584 (S.D.N.Y. Sept. 10, 2009), aff’d 375 Fed. Appx. 81 (2d Cir. 2010). (We summarized the district court’s decision and the Second Circuit’s decision affirming dismissal of the claims.) In this state court action, in addition to asserting state-law claims against HarperCollins, plaintiff also sued comedian Jerry Seinfeld, the husband of Jessica Seinfeld, for defamation, because of Jerry Seinfeld’s televised remarks about plaintiff.
Defendants HarperCollins and Jerry Seinfeld moved to dismiss all claims, which the court granted. First, with respect to plaintiff’s breach of implied contract claim, the court found that a contract could not be implied from the parties’ behavior. The court said that even in the area of implied-in-fact contracts, there must be mutual assent by the parties, and that plaintiff did not plead any facts to support a finding that HarperCollins agreed to be bound. Plaintiff had pled that HarperCollins solicited her manuscript, but the court found that plaintiff had not argued that solicitation, standing alone, could give rise to a finding of an implied contract. The court also noted that price is an essential element of a contract, and that the complaint failed to allege the amount of compensation that plaintiff would have been owed under an implied-in-fact contract. Plaintiff had mentioned, in her opposition to defendants’ motion to dismiss, that industry custom created the implied contract. While recognizing that industry custom may support an implied-in-fact contract, the complaint – which plaintiff chose not to amend – made no reference to industry custom. The absence of a legally cognizable relationship between plaintiff and HarperCollins also defeated her misappropriation of ideas claim, which must be predicated on a relationship, either fiduciary, or emanating from an implied, express, or quasi-contract.
It what may be dicta because of the court’s prior finding of no implied contract, the court also rejected plaintiff’s contract and misappropriation claims for the independent reason of lack of novelty in the idea that she alleged had been stolen. In its novelty discussion, the court first rejected the idea that under New York law a breach of implied contract claim required a lesser showing of novelty – that of novelty to the defendant only – than a claim of misappropriation, which required a showing of novelty to the world at large. The court rejected the Second Circuit opinion that it said made this distinction, Nadel v. Play-By-Play Toys & Novelties, Inc., 208 F.3d 368 (2d Cir. 2000), and said that under both theories, breach of contract and misappropriation, plaintiff needed to show that her cookbook was novel to the world at large.
The court found that the idea of sneaking nutritious ingredients into children’s meals was not novel, and dated at least to the early 1970s. The idea had been the subject of prior books and articles, and plaintiff’s book was, the court concluded, “at best, a creative variation on preexisting ideas.” Since the idea was already in the public domain, moreover, the court found that plaintiff could not even meet the lesser novelty standard had it applied – that of novelty to the defendant only.
Finally, the court dismissed plaintiff’s defamation claim against Jerry Seinfeld, finding that Seinfeld’s remarks on The Late Show with David Letterman and E! News were opinions protected by the First Amendment. While opinions may lose their constitutional protections when a listener would believe the speaker to be conveying facts, the court found that no reasonable person listening to Seinfeld’s remarks would have concluded that he was making factual statements about the plaintiff. Rather, the court said, Seinfeld was making humorously exaggerated remarks about plaintiff that were part of his typically comedic take on events.