Sunday, March 02, 2008

Not that there's anything defamatory about that

Missy Chase Lapine, who wrote The Sneaky Chef: Simple Strategies for Hiding Healthy Foods in Kids’ Favorite Meals, accused Jerry Seinfeld’s wife Jessica of plagiarizing her cookbook, which also features fruit and vegetable purees hidden in more “fun” food. She then sued for copyright infringement (not plagiarism) and defamation. Slate said sensible things about the plagiarism accusations.

E! News reports:

The defamation charge … stems from an appearance the comic made on Late Show with David Letterman back on Oct. 29, in which he discussed Lapine’s supposed accusation of “vegetable plagiarism” against his wife.

“My wife never saw the book, read the book, used the book,” Seinfeld said on the show. “Didn’t know anything about it.”

…. He went on to refer to Lapine as a “wacko,” and in the pièce de legal résistance, he unflatteringly likened her to some historical three-named forbears—chiefly, the assassins of John Lennon and Martin Luther King Jr.

“She’s a three-name woman, which concerns me,” he told Letterman on the show. “If you read history, many of the three-name people do become assassins. Mark David Chapman and, you know, James Earl Ray. So, that’s my concern.”

… “Are you worried now that discussing it on the television program, that it will incite or exacerbate the circumstance?” the host prodded.

Seinfeld has now filed a motion to dismiss the lawsuit. CNN reports:

In a filing in U.S. District Court in Manhattan, attorneys for the former sitcom star asked a judge to throw out a lawsuit filed by Missy Chase Lapine against Seinfeld and his wife, the New York Daily News reported in Tuesday editions.

“Jerry Seinfeld made overstatements of opinion for comic effect,” the comedian’s lawyers said in the filing.

Comment: Seinfeld’s status as a well-known comedian probably gives him more leeway than many people would have to make “overstatements” for comic effect. Because defamation requires that a defamatory statement be something people are likely to believe, someone known for making outrageous statements is simply less likely to cause the type of reputational harm that defamation targets, even though Seinfeld’s statements are also more likely to be widely disseminated because of his fame. (Even someone not known for comic dialogue would probably be perceived as joking if she said that “three-name people do become assassins.” That’s just not a particularly believable claim.)

Seinfeld’s lawyers also embed the comic effect argument in the more general rule that statements of opinion aren’t actionable unless the audience would understand that the opinion relies on particular defamatory factual propositions. Unless a person is a trained psychologist or other expert, his statement that someone else is a “wacko” probably is understood as just opinion, especially when joined with implausible claims about the probability of becoming an assassin. Interestingly enough, defamation law generally relies on the judge or jury to determine the meaning understood by the audience, without any of the tools for assessing likely reaction developed by false advertising and trademark law. So if a judge agrees with me, the defamation case will go away – even if Lapine has a survey to offer.

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