And What's The Deal With Copyright Misuse? Seinfeld Cookbook Doesn't Infringe

from the you-can't-copyright-an-idea dept

Fri, Sep 11th 2009 8:08am — Mike Masnick

Do we need some sort of anti-SLAPP-type law against bogus copyright lawsuits over similar ideas rather than actual copying? We've seen quite a trend in such lawsuits especially concerning people who claim to have had an idea for a similar book, movie or TV show. But, of course, copyright is supposed to be clear: it's for the expression, not the idea. Of course, at times it's quite difficult to separate the two, and with our society always talking up "ownership" of content, it's perhaps no surprise that many people seem to think that they get to own certain ideas. And then they file lawsuits.

The latest such case involves Jessica Seinfeld, Jerry's wife, who published a cookbook, "Deceptively Delicious: Simple Secrets to Get Your Kids Eating Good Food." It's a pretty straightforward idea, and apparently the book has done well. That upset the author of another book on the same topic, who had apparently pitched the book idea (and had it rejected) by the publisher of Seinfeld's cookbook -- so she sued for copyright infringement. But, again, copyright doesn't cover ideas -- something you would think her lawyer would understand. Thankfully, the judge quickly tossed the case, while also taking the time to issue a bit of a thumbs-down review of the cookbook by the woman suing:

"Lapine's cookbook is a dry, rather text-heavy work," Judge Laura Taylor Swain of Federal District Court wrote in her review, while Ms. Seinfeld's "cookbook has a completely different feel and appears to be directed to a different audience."

On top of the ruling, interestingly, many people are recognizing that these types of lawsuits are really no more than PR stunts by the less-well-known author to jump on the publicity bandwagon of a best-selling author. Seinfeld's lawyers are claiming that the woman suing was just using the lawsuit as a publicity attempt, which is similar to what we've seen in other lawsuits like this one. That's why it makes sense to set up significant sanctions for actions like this, where it's clearly not a case of copyright infringement, and the lawsuit is almost certainly designed not to right some wrong, but to use the justice system as part of a PR campaign.

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Filed Under: cookbooks, copyright, ideas, infringement, jessica seinfeld

35 Comments

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Ima Fish (profile), 11 Sep 2009 @ 8:14am

Good ruling. Unfortunately, we don't see enough of those.
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John Doe, 11 Sep 2009 @ 8:17am

This should always be the case....
That's why it makes sense to set up significant sanctions for actions like this, where it's clearly not a case of copyright infringement, and the lawsuit is almost certainly designed not to right some wrong, but to use the justice system as part of a PR campaign.

This would solve much of the problem with the courts today, so it is exactly why we will never see it happen. IMHO, if you sue someone and lose you should pay all of their court fees and maybe even punitive damages. That would be real court reform. We do have a right to the courts in this country, but we don't have the right to cost other people time and money.
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Paul Brinker, 11 Sep 2009 @ 8:25am

How is this good PR?
Ill never see this story other then on Techdirt, and im not about to buy a cook book after reading it.

I do aggree we need some anti lawsuit laws that cover cases like this. A simple bond posted when going to court will due when your the attacker. If you really think you can win you can get a bank loan for the Bond.
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Anonymous Coward, 11 Sep 2009 @ 8:34am

Re: How is this good PR?
There is no such thing as bad publicity...or so they say.

The important thing is that some unknown Joe Schmoe gets attention because of a lawsuit, far more attention than there would have been without one.
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Brooks (profile), 11 Sep 2009 @ 8:43am

PR?
I'm not at all sure about this lawsuit-as-PR angle. Ok, so this lesser known author becomes semi-famous for having sued a publisher for reviewing her work and declining to publish.

Now, say you work at a publisher, and a manuscript comes in with this name on it. Do you open the package and read it, knowing she's prone to irrational lawsuits? Or do you just throw it out unread?
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Tony Baldus (profile), 11 Sep 2009 @ 8:46am

Re: How is this good PR?
There was a story about this on CNN so her campaign to get the word out appears to have worked.
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sehlat (profile), 11 Sep 2009 @ 8:47am

Sanctions? Dream on.
Most of our legislators at all levels are lawyers. The drawback of this is that there's not a chance in hell they'll vote sanctions against their own profession for anything that might make them a few bucks.
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Dark Helmet (profile), 11 Sep 2009 @ 9:02am

Am I really the first to say this?
"And What's The Deal With Copyright Misuse? Seinfeld Cookbook Doesn't Infringe"

NO SUIT FOR YOU!!!!
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Matthew Cruse (profile), 11 Sep 2009 @ 9:03am

Re: Re: How is this good PR?
It's the Streisand Effect put to good use? And like a previous poster said, there's no such thing as bad press. If you can't be Famous be Infamous.
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Jason (profile), 11 Sep 2009 @ 9:10am

Agency
Not a copyright issue, but almost certainly a breach of agency (if the original author can show a preponderance of evidence that the publisher milked her query letter to use for the more promotable Mrs. Seinfeld). They simply should have let this unknown gal in on the deal.

Jess is out of the water, but not the publisher.
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Brooks (profile), 11 Sep 2009 @ 9:17am

Re: Agency
Only if there was an agency agreement. If I send you a pitch letter, there's no agency relationship.
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Like Minded, 11 Sep 2009 @ 9:21am

Re: This should always be the case....
They actually do have these restrictions in place in areas of the country. In Florida, if you bring a civil suit against someone and you lose, you are required to pay all attorney fees and court costs. The problem with this is that if you are the "little guy' suing a large corporation, they can keep you in court for years or until your money runs out. Sad to say, but money talks and sometimes the guilty walk.
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Eric Goldman (profile), 11 Sep 2009 @ 9:38am

Fee-shifting in copyright cases
There is already a fee-shifting provision in copyright law that allows defendants to get bogus plaintiffs to pay their attorneys' fees in some circumstances. Eric.
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Jason (profile), 11 Sep 2009 @ 9:49am

Re: Re: Agency
...until the pitched idea is selected for production.

Agency can be established without a formal agreement, and case law backs it up. Simply listing to receive queries and then receiving them for possible selection and publication is plenty sufficient to establish the existence of an agreement IF the idea is then selected for production and publication.

There is a clear implied expectation on the part of an author that they are sending a query letter for THEIR OWN book deal, and this expectation is utterly reasonable. If the idea is no good, or even just no good for that particular publisher, no biggie, they send idea to another publisher and/or focus on other ideas. There generally IS NOT the expectation that the author is just acting as content fodder for another author, in fact, it is a reasonable expectation that this WOULD NOT happen.

In this case, it seems pretty likely that the publisher wanted to do a celebrity book deal with Seinfeld's super cute wife. They had her come in, rifle through their pitch files, and, presto - instant celebrity book deal.

They could have totally kept it legit and simply had the author ghost-write or even an alternate agreement to sign over her idea for another author to use.

AGAIN: THIS IS NOT A COPYRIGHT ISSUE! She doesn't have exclusive rights or claim to the idea, BUT she does have the right, when her submission was submitted for one purpose, to be let in on the deal when they use HER SUMBISSION for another purpose.

Of course, all the publisher has to do is show an independent, coincidental query letter from Jessica Seinfeld (preferably prior or simultaneous to the other gal's), and they're off the hook.

This is a great example of why I say that proper application of agency law makes copyright law superfluous and excessive.
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Comboman, 11 Sep 2009 @ 10:04am

Re: Am I really the first to say this?
+1 Funny
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Anonymous Coward, 11 Sep 2009 @ 10:18am

If you put a penalty on losing a lawsuit it will prevent many people who are in the right to not go through with a lawsuit because of the fear of the penalty.
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John Doe, 11 Sep 2009 @ 10:24am

Re:
I don't think so. What it would do is stop people who are wrong and know they are wrong and people who may be right, but only partially so and it isn't a big deal anyway. What is left are the legitimate cases.
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Chronno S. Trigger (profile), 11 Sep 2009 @ 10:50am

Re: Re:
no, what you end up with is the little guy afraid to take his perfectly reasonable complaint against a big business because there's still a good chance the the big business will win. And we get big Business not changing their practice against the little guy since even if the little guy wins his layer fees are much smaller (but at least this way the little guy can get a good layer).

I propose that any case that is thrown out as frivolous (AKA: they should have known better from the start), the plaintiff needs to pay all costs and damages (lost work hours, stress, layer fees, something above and beyond). This way the little guy can still file a reasonable claim but at least some of the BS from the big guys (and all the BS from the small guys) goes away.
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Chucklebutte (profile), 11 Sep 2009 @ 10:54am

You know its bad when....
when the judge tells you that your book sucks.

"too text heavy"

That brings up another point, what constitute as text heavy? Is it too many words for a judge to read? Do judges read at all? Our lives are in their hands, I hope they take some time to read at least every now and then~
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Chronno S. Trigger (profile), 11 Sep 2009 @ 10:56am

Re: Re: Re: Agency
"In this case, it seems pretty likely that the publisher wanted to do a celebrity book deal with Seinfeld's super cute wife. They had her come in, rifle through their pitch files, and, presto - instant celebrity book deal."

That is one hell of an accusation. Where douse the "pretty likely" come in? Are you saying that no one else could ever have thought about a cook book to make kids eating healthy easier? Better tell that to the creators of Good Eats and just about every Halloween cooking special I've ever seen. Are you saying that it's impossible that this Lapine person is just a crappy author and Ms. Seinfeld is good (like the judge said)?

I think this ranks up there with one of Dark Helmet's conspiracies, just not funny.
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Jason (profile), 11 Sep 2009 @ 11:13am

Re: Re: Re: Re: Agency
Settle down, Chronno! I made it quite clear that those comments were suppositional to the claim of the plaintiff, not to mention circumstantial to what is presented in the articles - ergo "SEEMS pretty likely"

Furthermore, I made it clear that it was JUST AS POSSIBLE that it's all a big misunderstanding, ergo:

"Of course, all the publisher has to do is show an independent, coincidental query letter from Jessica Seinfeld (preferably prior or simultaneous to the other gal's), and they're off the hook."

Off the hook because, in that case, they clearly didn't do anything wrong.

So NO, it's not "one hell of an accusation." You're just making one hell of leap in projecting (your own?) conspiracy theorist paranoia onto me.

Oughtta change your name to Hair Trigger, buddy.
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Trails, 11 Sep 2009 @ 11:19am

@Title
GROAN!
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Dark Helmet (profile), 11 Sep 2009 @ 11:22am

Re: Re: Re: Re: Agency
"I think this ranks up there with one of Dark Helmet's conspiracies, just not funny."

Silly person, it is a well-known fact that the Seinfelds are a family name with a long history, stemming back to pre-Civil War era public expansion of global banking interests of the Rothschild family.

Long ago, when the pod people actvely populated the earth with easy to take over peoples, they set up the Seinfelds as one of their premier ruler famalies.

All of WWII was precipitated because the of a contract dispute between Hitler and a Rothschild-owned bank run by a Mortimer Seinfeld over a set of supposedly vintage retro raincoats. The Cramers of Germany decided to sever ties with the London-based Seinfelds and preceded to move upon Elainskis of Poland to precipitate their London bombing. Unfortunately, the Kazstanzas of Russia retaliated, also entering into a "Master of their own domain" pact with the Seinfeld English and the Allies, led by little-known four star General Nueman.

Or did you think that show was just a sitcom? Naivety knows no bounds....
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Jason (profile), 11 Sep 2009 @ 11:31am

Re: You know its bad when....
Another reason this shouldn't have been pursued under copyright. They should never have created the situation where the books were compared, but a copyright claim basically requires that.

The real wrong that was (supposedly, Chronno, supposedly)done is the publisher accepting one author's pitch card and turning around and using it for another, more salable author for their own benefit and to her detriment.
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DJ (profile), 11 Sep 2009 @ 11:33am

Re: How is this good PR?
I'll never see it anywhere else, either, but in quoting the judge verbatim, Mike accidentally gave the other author some free PR. How? Well, how many of us would never have known her name otherwise?
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DJ (profile), 11 Sep 2009 @ 11:34am

Re: Am I really the first to say this?
LMAO
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Chronno S. Trigger (profile), 11 Sep 2009 @ 12:06pm

Re: Re: Re: Re: Re: Agency
Just re-read your post and it still sounds like a direct accusation. You start with saying that someone sends in an idea with the expectation of not having it taken by another author. Then you go on to say that it's "pretty likely" that the publisher just wanted a bigger name behind the book. You then suggest a kick back to the original author to have avoided this incident in the first place and finish with, in the context of the rest of the post, what sounds like making shit up to get out of trouble.

If that was not your intent I apologize. Text doesn't convey sarcasm vary well.
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1DandyTroll, 11 Sep 2009 @ 12:42pm

When the ponze scheme organizations took away the need to register a copy and giving rights based on that, which they did in a frivolous law-suing society, they lay the foundation for people to claim their right.

It's the same with patents.

Other countries doesn't have the same problem, since it is the first inline who gets served all the rights, and if you want to contest those rights you need to show proof that an actual crime was committed, like spying.
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Anonymous Coward, 11 Sep 2009 @ 12:54pm

This sounds like when Calvin Klein stole Kramer's idea for a cologne that "smells like the beach"!
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Jason (profile), 11 Sep 2009 @ 1:29pm

Re: Re: Re: Re: Re: Re: Agency
For the second time: I didn't say it's "pretty likely." I said it "seems pretty likely". It's got nothing to do with sarcasm. My intent was PLAIN.

It seems like there's a case here, but, as the first post plainly says, that's only "if the original author can show a preponderance of evidence that the publisher milked her query letter."

As for context, the second post was in the context of Brooks' response and thus addressed the point of law in question, the facts of the case were background material. As for making shit up, I don't really give a shit what actually happened. The point I was making was all about the law and only about the law. Fuck what happened.

Do you feel better now that I dropped some peppers in there?

Also, not that the subtle meaning of words matters at all to you, but a 'kickback' is an improper or unethical payment under the table. I simply suggested reaching a mutual agreement for proper compensation. Quick projecting your own slime-ball thoughts on me.

But hey, six of one, half a dozen...either you don't read so good or you're misquoting me on purpose; I can't really help either, so havvuhnizeday!!
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Jason (profile), 11 Sep 2009 @ 1:35pm

Re: Am I really the first to say this?
Thanks for laugh, Lord Helmet.

Oh and sorry for getting myself compared to you in a negative light! I promise it won't happen again.
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Dark Helmet (profile), 11 Sep 2009 @ 2:34pm

Re: Re: Am I really the first to say this?
Damn right you won't, or your nuts will feel the power of my Schwartz ring...
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Brooks (profile), 11 Sep 2009 @ 3:33pm

Re: Re: Re: Agency
This is nonsense. Unsolicited pitches do not create agency or liability. If I send you an idea for a book, I have no rights whatsoever if you choose to post my unsolicited idea on the internet, to rethink it yourself, or to ask someone else to write it. You are perfectly free to say "hey, that's a fine idea, I'll ask someone else to write it."

Now, if it gets to the point of plagiarism, then maybe I'd have some claim. But mere ideas and pitches and stuff you hear at random does not create agency. If you really disagre, pease cite even a single case where an agency relationship has been found based on an unsolicited submission.
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anonymous, 11 Sep 2009 @ 11:49pm

Jessica Seinfeld
Jessica Seinfled Deceptively Deceitful

http://www.judiciaryreport.com/jessica_seinfeld_deceptively_deceitful.htm
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wvhillbilly (profile), 13 Sep 2009 @ 7:14pm

Re: Re: Re: Am I really the first to say this?
Go back under your bridge!
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