A chef may be able to sneak beets into brownies, but she can’t conceal a copyright claim in a state law cause of action, according to a New York County Supreme Court. In the latest chapter of the ongoing saga between Missy Chase Lapine, author of The Sneaky Chef: Simple Strategies for Hiding Healthy Foods in Kids’ Favorite Meals and Jessica Seinfeld, author of Deceptively Delicious: Simple Secrets To Get Your Kids Eating Good Food, Justice Marcy S. Friedman dismissed Lapine’s claims for breach of implied-in-fact contract and idea misappropriation against HarperCollins, Inc., Deceptively Delicious’s publisher, and for defamation against Jerry Seinfeld, Jessica Seinfeld’s husband.
The dispute began in federal court in January 2008, when Lapine sued Jessica Seinfeld for, among other things, copyright infringement, arguing that Seinfeld’s cookbook was nearly identical to hers. The court ruled for Seinfeld, and the appeals court affirmed, on the grounds that the two cookbooks were not substantially similar, as required for recovery under the Copyright Act.
Unable to recover for the expression of her idea – that is, the cookbook itself – Lapine sought compensation for the idea underlying the cookbook: sneaking vegetables into recipes that kids will eat. She sued in state court last March, alleging she had submitted her proposal for a children’s cookbook to HarperCollins, which then stole her idea by publishing Seinfeld cookbook nearly two years later.
On February 23, 2011, the New York Supreme Court dismissed both of Lapine’s claims against HarperCollins. The breach of implied contract claim failed because Lapine alleged neither the price agreed upon nor HarperCollins’ assent to the terms. The idea misappropriation claim failed because Lapine did not allege a sufficient relationship between the parties. The court also said that Lapine’s idea – tricking children into eating healthy food – was not novel. For these reasons alone, both of Lapine’s claims against HarperCollins could have been dismissed.
In a somewhat unusual move, however, the court continued its analysis by engaging in a lengthy – and legally superfluous – examination of whether the Copyright Act would “preempt” Lapine’s claims. The Copyright Act provides that it exclusively governs anything that comes within the subject matter of copyright. Therefore, it bars – or preempts – any state law claim that provides similar protection over a work that falls within the scope of the Copyright Act. A state law claim will not be preempted, however, if it requires an extra element that makes it qualitatively different than a claim under the Copyright Act.
Whether a claim is preempted depends on the nature of the claim itself. With respect to the breach of implied contract claim, the court found inconsistent lines of authority: some courts have held that an implied promise to pay for the use of an idea constitutes the extra element necessary to avoid preemption by the Copyright Act, whereas other courts have held that such promises fall within the rights protected by the Copyright Act and are therefore preempted. In the end, the court did not decide whether the implied contract claim was preempted because it had already determined that the allegations were deficient and that the parties had not sufficiently briefed the issue.
By contrast, the court noted that had Lapine properly pled her idea misappropriation claim, the Copyright Act would have clearly preempted it. The court stated that “[i]t is well settled that misappropriation claims grounded solely in the use of a plaintiff’s protected expression are preempted by the Copyright Act.” Thus, to the extent a plaintiff alleges only another’s unauthorized use of her idea or the expression of her idea, her sole remedy lies under the Copyright Act.
The court also dismissed Lapine’s claims of defamation against Jerry Seinfeld arising out of his comments during an interview on The Late Show With David Letterman. The court held that while humor and comedy were not entitled to absolute protection under the First Amendment, Seinfeld’s description of Lapine as a “wacko” was a legally protected statement of his opinion about the merits of the litigation.