Good Artists Copy, Great Artists Steal

When is it acceptable, and legal, to copy someone else’s photo, or recipe?

Borrowing from Larry Lessig, there are three constraints on copying: social disapprobation (norms), technological impediments (code), and fears of copyright infringement liability (law). We see two case studies in today’s Washington Post and New York Times. First, Missy Chase Lapine has sued Jessica and Jerry Seinfeld for copyright infringement and defamation. Her allegations are that Mrs. Seinfeld’s cookbook unlawfully copies her ideas, and recipes, about hiding nutritious ingredients in children’s foods (kids, inspect your brownies carefully!), and that Mr. Seinfeld slandered her as a “wacko” on David Letterman’s show. Second, the Post looks at instances of corporations and mass media entities using (copyrighted) photos without permission. The two articles reinforce how much copyright law and popular conceptions about copyright are at odds.

Lapine’s lawsuit looks, well, wacky. (Please note: I haven’t yet read the complaint, and I haven’t read either cookbook.) First, “brazen plagiarism” may be ugly and unethical, but it’s not necessarily illegal. Lifting someone else’s ideas may be poor scholarship, but copyright’s idea / expression dichotomy generally prevents you from obtaining legal protection for ideas. (That’s the job of patent law.) This takes care of Lapine’s allegations about Seinfeld lifting her “philosophy” and “premise.” Second, as lawyer Steven Shaw notes in Slate, copyright protection for recipes is thin, if not non-existent. (Shaw does make some errors in his analysis; though – you don’t need to sell copies to violate copyright law (just copying protected expression is enough, under 17 USC 106(1), and distributing copies for free violates 17 USC 106(3)); paraphrasing can certainly constitute infringement if you’re copying protected elements such as characters (as McDonald’s did in one set of TV commercials – see Sid & Marty Krofft Television Productions v. McDonald’s, 562 F.2d 1157 (9th Cir. 1977)); and Seinfeld could have had pre-publication access to Lapine’s cookbook that would have enabled her to copy it.) So, to prevail, Ms. Lapine needs to show 1) that she has original expression (not ideas) in her cookbook, and 2) that Mrs. Seinfeld has copied it. Seems like a tall order. As for defamation, calling someone a “wacko” is classic opinion, protected by the First Amendment; it’s a different story if Seinfeld had claimed she kidnapped the Lindbergh baby or something similar. So, despite the claims, this doesn’t look like a copyright foul.

The photo story is different altogether. The Internet makes it exceedingly easy to copy, and use, digital photos. Apparently Virgin Mobile Australia, Babble, and even Microsoft have done so, without regard to copyright law’s niceties. Many of the violators blamed interns for the unlawful use. This is a nice piece of spin, but it doesn’t matter: copyright infringement is a strict liability offense (the law doesn’t care whether you meant to do it or not), and an employer would almost certainly be liable for an intern’s infringement under a theory of vicarious liability. The problem here is partly social: increasingly, we think that because something’s available on the Web, it’s permissible to use it. Not so. By default, copying a photo (even downloading it to one’s hard drive) violates copyright; licenses such as those offered by Creative Commons permit some uses, but not others. So, easy copying, and an ethos that doing so isn’t really wrong, have caused even corporate titans to violate copyright.

What’s the lesson? Well, as my colleague Jessica Litman points out in her book Digital Copyright, copyright law and social norms around copying are increasingly divergent. Even IP-oriented companies can run afoul of the law. But copyright doesn’t cover everything, and it can be abused by authors who are unhappy that they didn’t make it onto Oprah. Your grandmother’s recipe for noodle kugel may be a wonderful invention, but it isn’t protected by copyright. In the end, I think that these articles show how little we understand the ever-shifting contours of the law’s restrictions on the use of creative expression. That’s bad for ordinary people, though it does keep those of us who are IP lawyers in business…

9 Responses to “Good Artists Copy, Great Artists Steal”

  1. The Smoking Gun has a copy of the lawsuit here:

    While I think it is a tough case, I think it is far from Wacko – there is a strong “structure, sequence & organization” argument as well as a “look & feel” argument based on the allegations that make it look like the second cookbook is more than just an idea knock-off. I think this is not an easy summary judgment for the defendant here.

    While it is true that “ideas” in recipes may be copied, the striking similarity between some of the recipes, as well as the 1 to 1 correspondence between the “secret ingredients” iin each recipe is very good evidence of access and copying of the other copyrightable elements. Similarly, the allegations that the Seinfeld publisher had access and acted duplicitously is pretty good if true – apparently Harper Collins told Lapine that cookbooks were losers in the market, yet a few months later came out with a cookbook that is in many ways similar to the exact cookbook it rejected. I was surprised that Collins wasn’t a named defendant.

  2. While I agree that Derek’s analysis above does neglect the question of whether or not Jessica Seinfeld’s book violated the copyright in the compilation of recipes, I disagree with Michael that the “1 to 1 correspondence between the “secret ingredients” iin each recipe is very good evidence of access and copying of the other copyrightable elements.” While it may be good evidence of access and copying, it hardly serves as very strong evidence of copying of copyrightable elements of the compilation. The copyright in the compilation is in the selection and arrangement of the recipes, the copyrightable explanatory text for sections, etc. A 1 to 1 correspondance between various veggies that were added to specific recipes is copying of unprotectable elements by itself, and even spread across many of the recipes would still be just copying of unprotectable ideas. It begins to look more like infringement of the compilation the more recipes there are with that 1 to 1 correspondance of “secret ingredients” because it is at least some evidence of copying of the selection and arrangment but the better argument for infringement of the copyright in the compilation is to look at both books and see how many of the recipes are the same between the two, see how similar the grouping into chapters and sections is, etc… Having not seen either book, I can’t make that call.

  3. […] best thing about this article, however, is the discussion of it, with the wonderful title “Good Artists Copy, Great Artists Steal” on the Info/Law blog. I don’t think I have the chance to point to Info/Law before, but […]

  4. I haven’t read either cookbook, but I have a couple of observations about the complaint and Michael Risch’s comments.

    There is no allegation that the recipes are identical, just that the “secret” ingredients in 11 specific recipes were the same. I don’t know how many recipes were in the cookbook, but I assume that it has many times that amount. That certainly seems more like a coincidence than “very good evidence of access and copying of the other copyrightable elements.”

    The bulk of the complaint focuses on similarities in concept and the use of a few common phrases in the two books. Having five children of my own, it is not surprising that two cookbooks discussing getting children to eat healthy food would talk about “begging” kids to eat certain foods and the “power struggle” that goes on at the table. In fact, it is hard to imagine a cookbook on the topic that would not use those terms since the premise of the book is getting kids to eat “foods that kid’s won’t go near” (which term the complaint also seems to believe is something unique, since they lambast Seinfeld’s book for using the similar term “foods my kids wouldn’t touch).

    I wonder, do the lawyers who drafted the complaint have kids?

  5. I’m about to read the copy of the complaint.

    My take remains that the copyright in the Lapine cookbook is “thin” – likely limited to explanatory text and, perhaps, the exact selection and arrangement of recipes. I’d need to see the Seinfeld book, but I would be surprised if it was close enough to infringe. And “secret ingredients” might be protected by patent, but it’s clearly out in terms of copyright law. Even if Seinfeld deliberately copied the recipes, with secret ingredients, from Lapine, there’s still no infringement under Feist.

    But I need to read the complaint before snarking further.

  6. So, a couple points in response:
    “While it may be good evidence of access and copying, it hardly serves as very strong evidence of copying of copyrightable elements of the compilation.”

    I agree with this, and it is what I was trying to say. One defense here is that there was no access – these similarities seem to rebut that a lot.

    I also agree that it is a relatively thin copyright, but I think the similarities are enough to argue to a jury where the publisher declined the book by Lapine.

    I would also make the “breach of confidence” argument in California for “concept stealing” if I were the plaintiff.

  7. I just re-read the complaint on the Smoking Gun Web site:

    The copyright claims can only be described as a steaming pile of carrot puree. The complaint cites things that can’t even be copyrighted – e.g., key “hidden” ingredients in recipes – and points to allegedly similar passages that simply don’t strike me (under the “ordinary observer” test) as not sufficiently similar. If this survives a motion to dismiss, I’d be surprised, even given the fact-based questions here.

    The defamation issues are outside my zone of expertise, since I don’t really understand Torts, but I think there’s no way around the fact that 1) Lapine is a public figure, so NYT v. Sullivan’s standard applies, and 2) Seinfeld’s comments are hyperbolic opinion – no reasonable person would think that the unhappy cookbook author is actually an assassin.

    I’m actually thinking of strengthening what I wrote in my original post. 🙂

  8. My husband is an artist, he paints seascapes. To make a long painful story short, his cousin is copying his work. Is there anything at all that can be done?
    Look at then .

  9. Recipe copyright law states that ingredient lists can not be copyrighted, while directions and recipe organization (such as in a book format) are subject to copyright protection laws. In this case I do not see an infringement.