A copyright infringement case brought by an Ethiopian cookbook author was thrown out Wednesday by a federal judge who criticized the “unreasonable nature of plaintiff’s claims.”
Eastern District Judge Brian Cogan awarded attorney fees and costs to the defendant, and lambasted both the plaintiff author and his counsel at Pardalis & Nohavicka in his 14-page opinion Wednesday.
The judge held plaintiff Ian Schleifer and the Astoria, Queens-based law firm jointly and severally liable for costs and fees, the amount of which are being determined.
“No reasonable copyright attorney, or even an attorney who had devoted 20 minutes to legal research, would have filed this complaint,” Cogan wrote. “Plaintiff’s attorneys seemed to have taken the position that they were going to roll the dice even though nothing in law or fact supported their filing or prosecuting this suit.”
Schleifer’s attorney, senior partner Joseph Nohavicka, said on Thursday that he is “discussing options with our client right now” regarding how they may respond to Cogan’s decision.
“All of the options that are available are being presented to the client, and we will come to a decision in the next couple days,” Nohavicka said. He declined to specify the options being discussed or comment further on the ruling in Schleifer v. Berns, 17cv1649.
The suit alleged that defendant Kittee Berns’ 2015 cookbook “Teff Love: Adventures in Vegan Ethiopian Cooking” used protected information from Schleifer’s 2007 (and second edition 2016) cookbook, “ Ethiopian-Inspired Cooking: Vegetarian Specialties.”
But in pulling apart Schleifer’s complaint, Cogan included a table that listed four passages from the respective books that were allegedly similar and wrote that it showed all of the potential infringements.
He then took apart Schleifer’s and Pardalis & Nohavicka’s accusations.
“These few common words [shown in the table] provide no basis for a copyright infringement claim,” he wrote. “To the extent the two works have general similarities—including the fact that both are about vegetarian or vegan Ethiopian cuisine, the inclusion of illustrations of prepared dishes, and descriptions of foods as spicy, spongy, or the like—these elements simply do not amount to a claim for copyright violation.
“Instead, they are ‘scènes à faire,’ or ‘unprotectible elements that follow naturally from [the] work’s theme rather than from [the] author’s creativity,’” he wrote, while quoting MyWebGrocer LLC v. Hometown Info, a 2004 ruling from the U.S. Court of Appeals for the Second Circuit.
Turning to his discretionary decision under the Copyright Act of whether to award fees and costs to Berns, Cogan grew more specific about his problems with Schleifer and Pardalis & Nohavicka’s actions in litigating the suit. He found a need “for both compensation and deterrence” of future complaints.
“Plaintiff’s opposition to the motion to dismiss contains a mere three-and-one-half pages arguing that his copyright claim was actionable,” he said. “The vast majority of those pages is the plain recitation of the legal standards, which is to say that plaintiff could not point to any cases that would support his action because there are none.”
“Put differently,” Cogan added, “plaintiff’s position was so far afield that his attorneys could not even defend against the motion to dismiss.”
Jordan Fletcher, of counsel at the Manhattan law firm of Kushnirsky Gerber, who represented Berns, said on Thursday that his client was pleased with the decision but declined further comment.