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

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

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.

© Foley Hoag LLP - Trademark, Copyright & Unfair Competition | Attorney Advertising

Written by:

Foley Hoag LLP - Trademark, Copyright & Unfair Competition
Contact
more
less

Foley Hoag LLP - Trademark, Copyright & Unfair Competition on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.