USDC S.D. New York, September 10, 2009

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  • Court grants summary judgment for defendant author and publishers on plaintiff’s copyright infringement claim involving a cookbook for creating healthy foods for kids; court holds that the total look and feel of cookbooks is not substantially similar; that alleged similarities in each book are stock elements of cookbooks for creating healthy meals for kids, and that theme of plaintiff’s book – hiding healthy ingredients in kid-friendly foods – is an idea not subject to copyright protection.

Plaintiff’s cookbook, about how to hide vegetables in foods that children like to eat, was published in April, 2007. Defendant Jessica Seinfeld’s cookbook on the same topic was published in October, 2007. Both cookbooks contained an introduction or forward by a doctor, the author’s narrative about struggling to get her children to eat nutritious meals, lists of kitchen appliances and ingredients, instructions for making vegetable purees and storing them for later use, and recipes for incorporating the purees into foods that kids like to eat. Plaintiff’s cookbook also included other techniques for getting children to eat nutritious foods and a description of plaintiff’s food and parenting philosophies.

Plaintiff filed suit for, among other things, copyright infringement and trademark infringement. Plaintiff acknowledged that the idea of hiding healthy ingredients in kids’ food is not protected by copyright, but asserted that her book constituted her copyrightable expression of the idea of hiding vegetables “by giving instructions for making vegetable purees in advance, storing them for future use, and then using them in specially created recipes which include the pre-made purees as ingredients.” The court disagreed, stating that plaintiff’s description of the allegedly protected expression “is so abstract as to clearly fall into the category of unprotectible process or idea. It remains nothing more than the very idea that Plaintiffs recognize as unprotectible: hiding vegetables in foods children enjoy.”

After finding that the similar theme of the two works was not subject to copyright protection, the court turned to the specific similarities between the two works such as the introduction by a doctor, the author’s narrative, the lists of kitchen appliances and ingredients, instructions for making vegetable purees, and recipes. The court held that these similarities were stock elements of cookbooks about getting healthy ingredients into foods children will eat and thus insufficient to sustain a claim for copyright infringement.

The court also examined the total look and feel of each book. The court held that plaintiff’s book, which is a “dry, rather text-heavy work” and was written by someone with professional training as a chef, is not substantially similar to defendant’s book which is “bright and cheerful” and targets an audience of busy parents with little or no cooking skill.

The court also granted summary judgment for defendants on plaintiff’s trademark infringement claim, finding that plaintiff’s and defendant’s trademarks in the form of the cover drawing on each book were not similar “[e]xcept in the most abstract sense,” and not likely to cause confusion. The court further granted summary judgment for defendants on plaintiff’s unfair competition claim; according to the court, plaintiff’s unfair competition claim is the same as her copyright claim – that defendants took plaintiff’s ideas and used them in their cookbook without plaintiff’s permission and without any attribution as to the source of the ideas and the work – and “[t]his is precisely the type of claim that is precluded by Dastar Corp. v. Twentieth Century Fox Film Corp. [539 U.S. 23 (2003)]”.

Finally, the court declined to exert supplemental jurisdiction over plaintiff’s state law defamation claim against defendant’s husband, Jerry Seinfeld, and over plaintiff’s state law claims for injury to business reputation.