Lapine v. Seinfeld, 375 F. App'x 81 (2d Cir. 2010). · Go Syfert
Lapine v. Seinfeld, 375 F. App'x 81 (2d Cir. 2010). Cases Citing This Book View Copy Cite
14 citation events (14 in the last 25 years) across 5 distinct courts.
Top citers, strongest first. 10 distinct citers. How cited ↗
discussed Cited as authority (rule) NSI International, Inc. v. Horizon Group USA, Inc. (2×)
S.D.N.Y. · 2021 · confidence medium
As a result, courts have dismissed copyright infringement claims based on placement of functional elements, see, e.g., Peter Gaito Architecture, 602 F.3d at 68 , or elements that follow naturally from the work’s theme rather than from the author’s creativity, see, e.g., Lapine v. Seinfeld, 375 F. App’x 81, 83 (2d Cir. 2010).
discussed Cited as authority (rule) Hamilton International Ltd. v. Vortic LLC
S.D.N.Y. · 2020 · confidence medium
No. 145 at 42, “[t]o determine the likelihood of dilution by blurring [under New York law], courts consider six factors similar to the Polaroid factors.” Lapine v. Seinfeld, 375 F. App’x 81, 85 (2d Cir. 2010); see N.Y.
discussed Cited as authority (rule) Hamilton International Ltd. v. Vortic LLC
S.D.N.Y. · 2019 · confidence medium
“To determine the likelihood of dilution by blurring [under New York law], courts consider six factors similar to the Polaroid factors.” Lapine v. Seinfeld, 375 F. App’x 81, 85 (2d Cir. 2010); see N.Y.
discussed Cited as authority (rule) Williams v. A & E Television Networks
S.D.N.Y. · 2015 · confidence medium
When considering works that have both protectable and unprotecta-ble elements, the Court is not required to “dissect” the works and only consider those elements that are copyrightable; rather, the Court is “principally guided by comparing the contested [work]’s total concept and overall feel with that of the allegedly infringed work.” Peter F. Gaito Arch., 602 F.3d at 66 . “[Although stock concepts and ‘scbnes d faire’ are ‘unprotectable’ in and of themselves, see Lapine v. Seinfeld, 375 Fed.Appx. 81, 83 (2d Cir.2010) (Summary Order), their ‘selection, coordination, and a…
discussed Cited as authority (rule) Canal+ Image UK Ltd. v. Lutvak
S.D.N.Y. · 2011 · confidence medium
On its face, disavowing the notion that courts should “compare only those elements which are in themselves copyrightable,” Gaito, 602 F.3d at 66 , seems hard to square with the “ ‘more discerning observer’ test, which requires substantial similarity between those elements, and only those elements, that provide eopyrightability to the allegedly infringed work.” Lapine v. Seinfeld, 375 Fed.Appx. 81, 83 (2d Cir.2010).
discussed Cited as authority (rule) Castorina v. SPIKE CABLE NETWORKS, INC.
E.D.N.Y · 2011 · confidence medium
Accordingly, although stock concepts and “scenes á faire” are “unprotectable” in and of themselves, see Lapine v. Seinfeld, 375 Fed.Appx. 81, 83 (2d Cir.2010), them “selection], coordination], and arrangeflnent],” can be protectable, to the extent that it reflects a particular “expression of ideas.” See generally Peter F. Gaito Architecture, LLC, 602 F.3d at 67 .
discussed Cited as authority (rule) Lapine v. Seinfeld
N.Y. Sup. Ct. · 2011 · confidence medium
While The Sneaky Chef assumes greater familiarity with cooking, recommends thirteen methods for hiding healthy foods, and provides recipes for multiple-ingredient purees, Deceptively Delicious instructs readers about only single-ingredient purees and contains more basic instructions.” (Lapine v Seinfeld, 375 Fed Appx 81, 83-84 [2d Cir 2010], affg 2009 WL 2902584 , 2009 US Dist LEXIS 82304 [SD NY 2009].) Claims against HarperCollins In the instant action, the essence of plaintiffs claims against HarperCollins is that Deceptively Delicious wrongfully “used Lapine’s idea for a book about hi…
discussed Cited "see" McDonald v. K-2 Industries, Inc.
W.D.N.Y. · 2015 · signal: see · confidence high
See generally Lapine v. Seinfeld, 375 Fed.Appx. 81, 83 (2d Cir.2010) (an idea cannot be copyrighted); New York Mercantile Exchange, Inc. v. IntercontinentalExchange, Inc., 497 F.3d 109, 116 (2d Cir.2007) (“[i]t has been long accepted that copyright protection does not extend to ideas; it protects only the means of expression employed by the author”) (internal quotation marks omitted).
discussed Cited "see" Stiles v. HARPERCOLLINS PUBLISHERS LLC
S.D.N.Y. · 2011 · signal: see · confidence high
See Lapine v. Seinfeld, 375 Fed.Appx. 81, 83 (2d Cir.2010) (two cookbooks based on same idea have different “total concept and feel” because one “lacks the extensive discussion” that “pervades” the other). 2.
discussed Cited "see, e.g." Khan v. Addys BBQ LLC
E.D.N.Y · 2019 · signal: see also · confidence medium
Hotel LLC (“NYSE”), 293 F.3d 550, 557 (2d Cir. 2002). marks; (ii) the similarity of the products covered; (iii) the sophistication of the consumers; (iv) the existence of predatory intent; (v) the renown of the senior mark; and (vi) the renown of the junior mark.” NYSE, 293 F.3d at 558 ; accord A&M Deli, --- F. App’x ---, 2019 WL 4744696 , at * 4; see also Lapine v. Seinfeld, 375 F. App’x 81, 85 (2d Cir. Apr. 28, 2010) (summary order) (“To determine the likelihood of dilution by blurring, courts consider six factors similar to the Polaroid factors, . . . and assess the similarity o…
Retrieving the full opinion text from the archive…
Missy Chase LAPINE, the Sneaky Chef, Inc., Plaintiffs-Appellants,
v.
Jessica SEINFELD, Jerry Seinfeld, HarperCollins Publishers, Inc., Departure Productions, LLC, Defendants-Appellees
09-4423-cv.
Court of Appeals for the Second Circuit.
Apr 28, 2010.
375 F. App'x 81
Martin N. Buchanan, Niddrie Fish & Buchanan LLP, San Diego, CA, (Howard B. Miller, Girardi & Keese, Los Angeles, CA; Christopher A. Seeger, David R. Buchanan, Seeger & Weiss LLP, New York, NY, on the brief)., Orin Snyder, Gibson Dunn & Crutcher LLP, New York, N.Y. (Laura K. O’Boyle, Gibson Dunn & Crutcher LLP, New York, NY; Thomas H. Dupree, Jr., Gibson, Dunn & Crutcher LLP, Washington, D.C., on the brief).
Raggi, Hall.
Cited by 12 opinions  |  Unpublished

SUMMARY ORDER

Plaintiffs Missy Chase Lapine and The Sneaky Chef, Inc., appeal from an award of summary judgment in favor of defendants Jessica Seinfeld, Jerry Seinfeld, HarperCollins Publishers, Inc., and Departure Productions, LLC, on plaintiffs’ claims of copyright infringement, trademark infringement, and trademark dilution. We review an award of summary judgment de novo, and we will affirm only if the record, viewed in the light most favorable to the nonmoving party, reveals no genuine issue of material fact. See Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48,106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Oilman v. Special Bd. of Adjustment No. 1063, 527 F.3d 239, 245 (2d Cir.2008). In doing so, we assume the parties’ familiarity with the facts and record of prior proceedings, which we reference only as necessary to explain our decision to affirm.

1. Copyright Infringement

Plaintiffs submit that the district court erred in concluding, as a matter of law, that defendants’ cookbook, Deceptively Delicious: Simple Secrets To Get Your Kids Eating Good Food, was not substantially similar to plaintiffs’ cookbook, The Sneaky Chef: Simple Strategies for Hiding Healthy Foods in Kids’ Favorite Meals, released four months earlier. “The standard test for substantial similarity between two items is whether an ordinary observer, unless he set out to detect the disparities, would be disposed to overlook them, and regard [the] aesthetic appeal as the same.” Yunnan Design, Inc. v. PAJ, Inc., 262 F.3d 101, 111 (2d Cir.2001) (alteration in original; internal quotation marks[*83] omitted). When, as in this case, a work incorporates unprotected elements from the public domain, we apply a “more discerning observer” test, which requires “substantial similarity between those elements, and only those elements, that provide copyrightability to the allegedly infringed [work].” Boisson v. Banian, Ltd., 273 F.3d 262, 272 (2d Cir.2001) (internal quotation marks omitted). Further, it is “entirely appropriate” for a district court to resolve the question of substantial similarity as a matter of law. Peter F. Gaito Architecture, LLC v. Simone Dev. Corp., 602 F.3d 57, 63-64 (2d Cir.2010).

Plaintiffs assert that “the two works are substantially similar in their unique and innovative expression of the idea [of sneaking vegetables into children’s food] by means of a cookbook containing comprehensive instructions for making and storing a variety of vegetable purees in advance, and then using the purees in specially created recipes for children’s favorite foods.” Appellant’s Br. at 21 (emphasis in original). We are not persuaded.

Stockpiling vegetable purees for covert use in children’s food is an idea that cannot be copyrighted. See 17 U.S.C. § 102(b) (“In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.”); Attia v. Soc’y of N.Y. Hosp., 201 F.3d 50, 54 (2d Cir.1999) (“It is a fundamental principle of our copyright doctrine that ideas, concepts, and processes are not protected from copying.”); Peter Pan Fabrics, Inc. v. Martin Weiner Corp., 274 F.2d 487, 489 (2d Cir. 1960) (L.Hand, J.) (“[T]here can be no copyright in the ‘ideas’ disclosed but only in them ‘expression.’ ”). Further, to the extent the two works have general and abstract similarities — including their vaguely similar titles and inclusion of illustrations of prepared dishes, health advice, personal narrative, descriptions of how to make purees, instructions for preparing dishes, and language about children’s healthy eating — the district court correctly concluded that these elements do not raise a fact issue for trial because they are “scenes á faire,” or “unprotectible elements that follow naturally from [the] work’s theme rather than from [the] author’s creativity.” MyWebCrocer, LLC v. Hometown Info, Inc., 375 F.3d 190, 194 (2d Cir.2004); see generally 4 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 13.03[B][4] (2009) (“Labeling certain stock elements as ‘scenes a faire’ does not imply that they are uncopyrightable; it merely states that similarity between plaintiffs and defendant’s works that are limited to hackneyed elements cannot furnish the basis for finding substantial similarity.” (footnote omitted)).

Our independent comparison of the two cookbooks confirms that the “total concept and feel” of Deceptively Delicious is very different from that of The Sneaky Chef. Tufenkian Imp./Exp. Ventures, Inc. v. Einstein Moomjy, Inc., 338 F.3d 127, 133-34 (2d Cir.2003); see also Reyher v. Children’s Television Workshop, 533 F.2d 87, 91-92 (2d Cir.1976). As the district court observed, Deceptively Delicious lacks the extensive discussion of child behavior, food philosophy, and parenting that pervades The Sneaky Chef. Unlike The Sneaky Chef, which uses primarily black, gray, and shades of brownish orange, Deceptively Delicious employs bright colors and more photographs. While The Sneaky Chef assumes greater familiarity with cooking, recommends thirteen methods for hiding healthy foods, and provides recipes for multiple-ingredient purees, Deceptively Delicious instructs readers about only single-ingredient purees and contains more[*84] basic instructions. Plaintiffs correctly note that “no plagiarist can excuse the wrong by showing how much of [her] work [s]he did not pirate.” Sheldon v. Metro-Goldwyn Pictures Corp., 81 F.2d 49, 56 (2d Cir.1936) (L.Hand, J.). Like the district court, we nevertheless conclude as a matter of law that the two cookbooks lack the substantial similarity required to support an inference of copyright infringement. Cf. Boisson v. Banian, Ltd., 273 F.3d at 274 (finding copyright infringement based on “enormous amount of sameness” between two quilts).

2. Trademark Infringement

Plaintiffs contend that the district court erred by concluding that there was not likely to be any consumer confusion between (1) defendants’ title and their realistic depictions of (a) a winking woman standing near carrots and holding a plate of brownies and (b) the same woman “shushing” in a head-and-shoulder cameo and (2) plaintiffs’ title and their stylized image of a female chef winking and “shushing” while concealing carrots behind her back. Specifically, plaintiffs fault the court for making this finding without considering all of the factors identified in Polaroid Corp. v. Polarad Electronics Corp., 287 F.2d 492, 495 (2d Cir.1961). We are not persuaded.

“[A] district court need not ‘slavishly recite the litany of all eight Polaroid factors in each and every case.’” Natural Organics, Inc. v. Nutraceutical Corp., 426 F.3d 576, 579 n. 1 (2d Cir.2005) (quoting Orient Express Trading Co. v. Federated Dep’t Stores, Inc., 842 F.2d 650, 654 (2d Cir.1988)). As the district court correctly recognized, “[i]n an appropriate case, the similarity-of-marks factor may alone be dispositive.” Playtex Prods., Inc. v. Geor-gia-Pac. Corp., 390 F.3d 158, 166-67 (2d Cir.2004), superseded on other grounds by statute as recognized in Starbucks Corp. v. Wolfe’s Borough Coffee, Inc., 588 F.3d 97, 108 (2d Cir.2009). This is such a case.

On appeal from a grant of summary judgment, we give “considerable deference” to the district court’s factual findings underlying individual Polaroid factors, but we review the balancing of Polaroid factors de novo. Id. at 162. Having considered the overall impression on a consumer and the context in which the competing marks are displayed, we reach the same conclusion as the district court: the marks are not confusingly similar. See Louis Vuitton Malletier v. Doo-ney & Bourke, Inc., 454 F.3d 108, 117 (2d Cir.2006). Defendants’ depictions of a winking woman holding brownies near carrots or simply “shushing” are very different from plaintiffs’ considerably less detailed and less colorful image of a female chef winking and “shushing” while holding carrots behind her back. Further, defendants’ use of the famous “Seinfeld” name reduces any likelihood of confusion regarding the marks. See, e.g., Nora Beverages, Inc. v. Perrier Group of Am., Inc., 269 F.3d 114, 123 (2d Cir.2001) (affirming summary judgment because “presence of prominent and distinctive labels ... negates any possibility of a likelihood of confusion”). Finally, any similarity of meaning “lacks the uniqueness that would cause a consumer to disregard all differences between [the] marks.” Physicians Formula Cosmetics, Inc. v. W. Cabot Cosmetics, Inc., 857 F.2d 80, 84 (2d Cir.1988). In sum, like the district court, we conclude that dissimilarity of the marks is dispositive. Accordingly, no remand for further findings with respect to other Polaroid factors is required. Cf. Natural Organics, Inc. v. Nutraceutical Corp., 426 F.3d at 580.

We also identify no error in discovery limitations regarding plaintiffs’ alleged in[*85] tentional copying of the marks. Because the marks are so dissimilar that no reasonable jury could find likely confusion, plaintiffs could not benefit from the presumption triggered by intentional copying. See Universal City Studios, Inc. v. Nintendo Co., 746 F.2d 112, 119 (2d Cir.1984); Warner Bros., Inc. v. Am. Broad. Cos., 720 F.2d 281, 247 (2d Cir.1983) (“[I]f comparison of the works reveals no fair jury issue concerning likelihood of confusion, then intent to copy, even if found from the proffered evidence, would not establish a Lan-ham Act violation.”).

3. Trademark Dilution

The absence of similarity also defeats plaintiffs’ challenge to the adverse judgment on their state claim of trademark dilution. See N.Y. Gen. Bus. Law § 360 — Z. To determine the likelihood of dilution by blurring, courts consider six factors similar to the Polaroid factors, see N.Y. Stock Exch., Inc. v. Neiv York, N. Y. Hotel LLC, 293 F.3d 550, 558 (2d Cir.2002), and assess the similarity of the marks “in a similar fashion” as under federal trademark law, Louis Viátton Malletier v. Dooney & Bourke, Inc., 454 F.3d at 119. We, therefore, conclude that plaintiffs’ state claim for trademark dilution fails as a matter of law for the same reason as their federal trademark infringement claim.

We have considered plaintiffs’ other arguments on appeal and conclude that they are without merit. Accordingly, we AFFIRM the judgment of the district court.