Second Circuit affirms summary judgment for defendant author Jessica Seinfeld and publisher in copyright infringement action relating to a cookbook for sneaking vegetables into foods for kids; court holds that the “total concept and feel” of the two books are very different and that covertly using vegetables in children’s food is an idea that cannot be copyrighted.As set forth in the district court’s prior order, 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 contain 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 filed suit for, among other things, copyright infringement and trademark infringement. The district court granted summary judgment to the defendants, holding that the concept of making vegetable purees and sneaking them into foods for kids is not copyrightable and that 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, 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 plaintiff appealed, asserting that the district court erred in concluding, as a matter of law, that the defendants’ cookbook was not substantially similar to the plaintiff’s cookbook. The U.S. Court of Appeals for the Second Circuit affirmed, stating that stockpiling vegetable purees for covert use in children’s food is an idea that cannot be copyrighted and that the district court correctly concluded that the general similarities in the books are scenes a faire and thus unprotectible elements that follow naturally from the work’s theme rather than from the author’s creativity. The appeals court also stated that it conducted an independent comparison of the works and concluded that the “total concept and feel” of the defendants’ book is very different from the plaintiff’s book. Specifically, the court noted that the defendants’ book lacks the extensive discussion of child behavior, food philosophy, and parenting that are found in the plaintiff’s book, that the color schemes are different, and that the defendants’ book contains only single-ingredient, versus multiple-ingredient, purees and simple instructions.
The court also affirmed summary judgment for the defendants on the trademark infringement and dilution claims. Plaintiffs contended that the district court erred by concluding that there was not likely to be any consumer confusion between the titles of the works and their depictions of winking and “shushing” women, and faulted the district court for not considering all of the factors identified in Polaroid Corp. v. Polaroid Electronics Corp., 287 F.3d (2d Cir. 1961). The Second Circuit was not persuaded and noted that “a district court need not ‘slavishly recite the litany of all eight Polaroid factors in each and every case.’” Reaching the same conclusion as the district court that the marks are not confusingly similar, the court stated that “defendants’ use of the famous ‘Seinfeld’ name reduces any likelihood of confusion regarding the marks.”.