A Recipe For Sanctions: “No reasonable copyright attorney … would have filed this complaint.”

by Foley Hoag LLP - Trademark, Copyright & Unfair Competition
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Foley Hoag LLP - Trademark, Copyright & Unfair Competition

If you are going to file a copyright infringement complaint based on a cookbook, beware. Copyrights in cookbooks are considered “thinner” than copyrights in many other types of literary works. There are several reasons for this, including:

  • Ingredients are considered facts, and therefore lists of ingredients are not copyrightable because facts are not “original works of authorship” under 17 U.S.C. § 102(a);
  • Although instructional text may be protectable by copyright if sufficiently original, the Compendium of U.S. Copyright Office Practices warns that any such copyright will not extend to the cooking activities described, because procedures, processes, or methods of operation are not subject to protection under 17 U.S.C. § 102(b). As a practical matter, this can significantly narrow or even doom a claim where the text has not been not copied by the defendant word for word;
  • Cookbooks often incorporate elements from the public domain, and therefore the test for substantial similarity is said to be “more discerning,” in that it looks to the similarity only as between protectable elements; and
  • Because cooking is a universal human endeavor with many widely-accepted tropes and traditions, the scènes à faire and merger doctrines can be particularly strong when it comes to cookbooks, which so often consist of elements that follow naturally from the work’s theme (which are not protectable) rather than from the author’s creativity.

Owing to the above issues and others, the assertion of a copyright claim based on a cookbook can be tricky, and it’s easy for counsel to overreach. Think of it like making a soufflé: you have to beat the egg whites, but if you beat them too much the soufflé falls.

And what is the litigation equivalent of a fallen soufflé?  Attorneys’ fees. That’s what happened in Schleifer v. Berns, in a withering decision issued on July 19, 2017 by Judge Brian Cogan of the Eastern District of New York.

Schleifer v. Berns

The facts of the case are fairly simple. Ian Schleifer, the author of an Ethiopian cookbook, alleged that the author of another Ethiopian cookbook infringed his copyright.  The crux of the complaint was that the two books contained similarities in language, including the following four alleged instances of “infringement,” reprinted in Judge Cogan’s opinion:

Allegedly Copied Passage from Plaintiff’s Cookbook

  Allegedly Infringing Passage from Defendant’s Cookbook
“Using our spongy, crepe-like injera bread. . . soaked through with the flavors and colors of the food.”

 

  Injera, a spongy, tangy . . . crepe-like bread, that soaks up the yummy sauces from the food that rests upon it.”

 

Tibs. . .this is a vegetarian spin on a popular meat dish. . . . Tibs is similar to a saute, stirfry, or sizzle.”

 

  [T]ibs are traditionally meat-filled stir-fry dishes.”

 

Berbere, a complex spice blend found in the hotter traditional Ethiopian dishes….”

 

 

[B]erbere is a spice blend made from moderately hot red peppers and a slew of other spices.”

 

“It is traditional for an Ethiopian hostess to roll up some of the meal in a piece of Injera and place the first bite in the guest’s mouth.”

 

Ethiopian tradition of wrapping. . .foods in injera and popping it into the mouths of special friends.”

Yep, that’s about it. Not impressed by these allegations of infringement?  Neither was Judge Cogan, who dismissed the complaint in its entirety. Judge Cogan held, among other things, that the factual descriptions of Ethiopian foods and culinary traditions were not protectable as a matter of law; that the few similarities between the books’ phrases were scènes à faire (e.g., “spongy” is the most common way, and some would say the only way, to describe injera); that in any event, “scattered words and short phrases” were not protectable as a matter of law; and that the total concept and feel of the works (which varied in terms of recipes, page length, text and photographs) were completely different. In other words, no reasonable fact finder could think that these two works were similar.

“No reasonable copyright attorney . . .”

Judge Cogan then turned to the issue of attorneys’ fees, which he found were appropriate here because the plaintiff’s factual and legal case was objectively unreasonable. Judge Cogan ordered that, as a sanction, the plaintiff’s attorneys would be jointly and severally liable for the award of fees (which defendant claims should be in the neighborhood of $30,000) because:

No reasonable copyright attorney, or even an attorney who had devoted 20 minutes to legal research, would have filed this complaint.

Looking to avoid a ruling like this one?  Let us help you out. Here is a recipe for attorneys’ fees, based on the actions that led to the award here, according to Judge Cogan’s decision:

Recipe for Attorneys’ Fees in a Cookbook Copyright Case

  1. First, allege copyright infringement based on a mere “four examples of similar language in what amounts to non-protectable factual descriptions.” Add to complaint and turn up the heat.
  2. If possible, base the complaint on multiple versions of the allegedly copyrighted cookbook, each of a different page length and with differing content, thus causing a broth of confusion. As the complaint boils, insist to the Court that all these versions are identical, even though they clearly are not, thus “exceed[ing] the bounds of fair argument.”
  3. Just before you turn down the stove, add a demand for statutory damages, even though the Plaintiff has no entitlement to statutory damages because he had no copyright registration at the time the defendant published her allegedly infringing work.
  4. Serve and let sit for 21 days.
  5. Once you see a motion to dismiss emerge from the pot, respond to it with no more than three and one-half pages of argument. Do “not point to any cases that would support” your position “because there are none,” and do not address the substantive arguments in the motion.
  6. For taste, introduce a statement by your client that he “wholeheartedly believes this lawsuit has merit.” This subjective statement is immaterial to any legal issue before the Court, but it will provide evidence to the judge that the plaintiff’s attorneys failed to explain to him that his case had no merit, thus opening the door to sanctions against the attorneys.

If you need a pairing suggestion, try a semi-dry North American blend such as the Sue-Ann Staff Estate Winery’s 2014 Frivolous White, described by one critic as “great with a frivolous culinary adventure or the simplest of cuisine.”

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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