Last month the U.S. Court of Appeals for the Second Circuit issued an opinion affirming the award of summary judgment in favor of Jessica Seinfeld et al. inLapine v. Seinfeld, 2010 U.S. App. LEXIS 8778 (2d Cir. April 28, 2010). Ms. Seinfeld is the wife of Jerry Seinfeld. Missy Chase Lapine and The Sneaky Chef, Inc. sued the Seinfelds for what Jerry Seinfeld described as “vegetable plagiarism.” Seehttp://www.reuters.com/article/idUSN0743521320080107(originally dated Jan. 7, 2008; downloaded on May 8, 2010).

Technically, Ms. Lapine sued for copyright infringement, trademark infringement and trademark dilution. The gravamen of the dispute involved competing cookbooks. Both parties published cookbooks that illustrated how to sneak vegetables into children’s food by making and storing purees in advance.

The Court held that copyright infringement did not exist because it was impossible to copyright the underlying concept of preparing purees. This is not unexpected because it is settled law that copyrights cannot protect ideas. Copyrights protect the expressions of ideas.

The Court also held that each book had a different “total concept and feel.” In other words, the two books were not substantially similar, which can be an element of a copyright-infringement claim.

Regarding the trademark claims, the Court performed an abbreviated analysis of the likelihood of confusion between both parties’ marks. The marks were so different that the Court did not need to consider all of the traditional factors that are used to determine a likelihood of confusion. The Court also held that it was not necessary to perform a full likelihood of dilution analysis on that basis.

The Lapine case illustrates the fact that some litigants can be very creative and will pursue claims that stretch the limits of the traditional types of intellectual-property (IP) claims.

Another example of such a claim occurred inDastar Corp. v. Twentieth Century Fox Film Corp. et al.,539 U.S. 23 (2003). InDastar,the original publisher of a book containing a biographical account of a portion of Dwight D. Eisenhower’s life brought a trademark infringement lawsuit against the distributor of a video that was based on that account. The publisher claimed that the Lanham Act required the distributor to credit the publisher as the original author of the video.

The publisher could not bring a copyright infringement claim because the copyright for the book had expired. However, the Supreme Court held that the Lanham Act cannot be used to prevent a party from copying a work without identifying the original author. In other words, the Court held that a party could not sue under the Lanham Act for plagiarism.

Both theLapinecase and theDastarcase illustrate the fact that most of these “creative” IP claims are unsuccessful. This suggests that potential plaintiffs should proceed with caution when bringing such claims. However, potential defendants should not take these claims lightly because it does require time and effort (and, usually, legal fees) to defend against such claims.

Moreover, in some cases, creative IP claims may be successful. InInternational News Service v. Associated Press,248 U.S. 215 (1918), the Supreme Court held that the Associated Press had an equitable “quasi-property” right to the early publication of news stories that it gathered at its own gain and expense.