MARCY S. FRIEDMAN, J.
In this action, plaintiff Missy Chase Lapine seeks damages from defendant Jerry Seinfeld for slander. Plaintiff also seeks damages from defendant HarperCollins Publishers, Inc. (HarperCollins) for breach of implied contract and for misappropriation and unfair competition. Defendants Seinfeld and HarperCollins move, pursuant to CPLR 3211 (a) (1) and (7), to dismiss all of the claims.
The action arises out of the publication of two cookbooks. In April 2007, plaintiff published The Sneaky Chef: Simple Strategies for Hiding Healthy Foods in Kids' Favorite Meals (The Sneaky Chef). In October 2007, defendant publisher HarperCollins released Deceptively Delicious: Simple Secrets To Get Your Kids Eating Good Food (Deceptively Delicious), written by Jessica Seinfeld, who is married to Jerry Seinfeld. (Complaint ¶¶ 2-4.)
The acts underlying this case were the subject of a prior federal lawsuit. The Second Circuit affirmed the grant of summary judgment dismissing plaintiff's copyright infringement, trademark infringement, and trademark dilution claims. Concluding that the two books were not "substantially similar" for copyright infringement purposes, the court reasoned
In the instant action, the essence of plaintiff's claims against HarperCollins is that Deceptively Delicious wrongfully "used
The claims against HarperCollins are also based on the following material allegations: Plaintiff, in response to a solicitation from a vice-president of HarperCollins, sent a book proposal, including excerpted chapters from The Sneaky Chef manuscript, to HarperCollins in February 2006, and again, through her agent, in May 2006. (Id. ¶¶ 19-21.) The book proposal was the culmination of plaintiff's research into "methods for getting children to eat healthier foods," resulting in "an innovative solution: camouflage healthy foods so that children will eat them without realizing or objecting." (Id. ¶ 16.) Both submissions were rejected, but HarperCollins retained the book proposal, including parts of the manuscript. (Id. ¶¶ 20, 22.) Subsequently, another publisher accepted plaintiff's proposal and published The Sneaky Chef in April 2007. (Id. ¶¶ 23, 24.) In May 2007, plaintiff "observed blatant similarities between the Seinfeld book and her book" when she obtained marketing materials for Deceptively Delicious and, through her publisher, brought the similarities to the attention of HarperCollins prior to publication. (Id. ¶¶ 25, 26.) With only "minor and insignificant modifications," HarperCollins published Deceptively Delicious in October 2007. (Id. ¶¶ 28, 29.)
Plaintiff alleges that the books are substantially similar in numerous respects which include: similar introductions, written by doctors, calling attention to the problem of obesity; personal anecdotes about mealtime struggles; recommendations to "camouflag[e] carefully-selected pureed healthy foods inside children's favorite foods"; reports of the authors' own success in
HarperCollins moves to dismiss the causes of action against it, on the grounds that they are defectively pleaded on their face and are preempted by the Federal Copyright Act.
The standards for review on a motion to dismiss addressed to the face of the pleading are well settled. "[T]he pleading is to be afforded a liberal construction (see, CPLR 3026). [The court must] accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory." (Leon v Martinez, 84 N.Y.2d 83, 87-88 [1994]; see 511 W. 232nd Owners Corp. v Jennifer Realty Co., 98 N.Y.2d 144 [2002].) However, wholly conclusory assertions are insufficient to support a cause of action. (See e.g. Welsh v Haven Manor Health Care Ctr., 15 A.D.3d 572 [2d Dept 2005]; Moskowitz v General Acc. Ins. Co., 179 A.D.2d 722 [2d Dept 1992]; see generally Caniglia v Chicago Tribune-N.Y. News Syndicate, 204 A.D.2d 233 [1st Dept 1994].)
Moreover, "the court is not required to accept factual allegations that are plainly contradicted by the documentary evidence or legal conclusions that are unsupportable based upon the undisputed facts." (Robinson v Robinson, 303 A.D.2d 234, 235 [1st Dept 2003]; see also Water St. Leasehold LLC v Deloitte & Touche LLP, 19 A.D.3d 183 [1st Dept 2005], lv denied 6 N.Y.3d 706 [2006].) When documentary evidence under CPLR 3211 (a) (1) is considered, "a dismissal is warranted only if the documentary evidence submitted conclusively establishes a defense to
Here, plaintiff does not claim that a written or oral agreement was formed between herself and defendant HarperCollins. Instead, she alleges that an implied-in-fact contract existed, evidenced by the behavior of the parties. (Complaint ¶ 54.) Such a contract "may result as an inference from the facts and circumstances of the case, although not formally stated in words, and is derived from the `presumed' intention of the parties as indicated by their conduct." (Jemzura v Jemzura, 36 N.Y.2d 496, 503-504 [1975] [citations omitted].) An implied-in-fact contract "is just as binding as an express contract." (Id. at 504.) Indeed, "an agreement by conduct does not differ from an express agreement except in the manner by which its existence is established." (Matter of Boice, 226 A.D.2d 908, 910 [3d Dept 1996].)
The elements of an implied-in-fact contract are the same as the elements of an express contract: "consideration, mutual assent, legal capacity and legal subject matter." (Maas v Cornell Univ., 94 N.Y.2d 87, 94 [1999].) Conduct of the parties may manifest assent, and "a promise may be implied when a court may justifiably infer that the promise would have been explicitly made, had attention been drawn to it." (Id.) Under settled law, a contract will not be found to have been formed if it is "not reasonably certain in its material terms." (Cobble Hill Nursing Home v Henry & Warren Corp., 74 N.Y.2d 475, 482 [1989]; Edelman v Poster, 72 A.D.3d 182, 184 [1st Dept 2010].)
In order to plead a claim for breach of contract, the proponent of the contract must accordingly allege "in nonconclusory language ..., the essential terms of the parties' ... contract, including those specific provisions of the contract upon which liability is predicated, whether the alleged agreement was, in fact, written or oral, and the rate of compensation." (Caniglia, 204 AD2d at 234 [citations omitted]; Matter of Sud v Sud, 211 A.D.2d 423, 424 [1st Dept 1995].)
In pleading her breach of contract cause of action, plaintiff relies on the bare allegation that "Lapine's submission of Lapine's Book proposal, with its original and novel ideas, was performed with the understanding and expectation, fully and clearly understood by HarperCollins, that Lapine would be reasonably compensated if HarperCollins made use of Lapine's Book manuscript or Lapine's ideas, recipes, or other matter it contained." (Complaint ¶¶ 55, 19.) She further claims that HarperCollins
Plaintiff's complaint does not contain any factual allegations of conduct by HarperCollins showing that it assented to a contract with plaintiff. While the complaint alleges that HarperCollins solicited plaintiff's manuscript, plaintiff does not submit any authority and, indeed, does not argue that such solicitation, without more, is sufficient to plead an implied-in-fact contract. Notably, also, although price is an essential element of a contract (see e.g. Cobble Hill Nursing Home v Henry & Warren Corp., 74 N.Y.2d 475 [1989], supra; Joseph Martin, Jr., Delicatessen v Schumacher, 52 N.Y.2d 105, 109-111 [1981]), the complaint does not allege the amount of compensation plaintiff claims she is owed.
In her brief in opposition to the motion to dismiss, plaintiff contends that she is "seeking the legally appropriate compensation for the use of her ideas based on industry custom." (Plaintiff's mem of law in opposition at 8.) However, the complaint itself does not plead the existence or features of industry custom. While the terms of an implied-in-fact contract may be defined, in appropriate circumstances, by industry custom, industry custom may not be relied upon where, as here, the pleading lacks any reference to it. (See Marraccini v Bertelsmann Music Group, 221 A.D.2d 95 [3d Dept 1996], lv denied 89 N.Y.2d 809 [1997]; Markogianis v Burger King Corp., 1997 WL 167113, 1997 US Dist LEXIS 4452 [SD NY 1997].)
In short, plaintiff's allegation that she submitted the proposal with the understanding that she would be paid reasonable compensation for the use of her ideas is wholly conclusory. It is therefore insufficient on its face to plead a cause of action for breach of implied contract.
HarperCollins argues that the breach of implied contract and misappropriation claims must be dismissed for the additional reason that the documentary evidence establishes that the idea that it allegedly wrongfully used lacks the novelty required to establish the claims.
The general rule is that "in order to recover under either theory, the plaintiff must establish the existence of a genuine issue as to the novelty and originality of the allegedly misappropriated ideas." (Paul v Haley, 183 A.D.2d 44, 53 [2d Dept 1992], lv denied 81 N.Y.2d 707 [1993].) The requirement of novelty is based on the principle that "when one submits an idea to another, no promise to pay for its use may be implied, and no asserted agreement enforced, if the elements of novelty and originality are absent, since the property right in an idea is
There is federal case law, interpreting New York law, which holds that while novelty and originality in general — i.e., to the world at large — must be shown in order to support a claim for misappropriation, a lesser showing of novelty to the buyer is required in order to support a claim for breach of implied contract. (See Nadel v Play-By-Play Toys & Novelties, Inc., 208 F.3d 368 [2d Cir 2000].) In this court's opinion, this federal holding is based on a misreading of Apfel v Prudential-Bache Sec. (81 N.Y.2d 470 [1993]). Apfel modifies Downey to the extent of holding that the novelty of an idea need not be demonstrated in order to establish a claim for breach of implied contract based on use of an idea without compensation where, subsequent to disclosure of the idea, the parties have entered into a contract for use of the idea. Apfel reasons that in such circumstances, the buyer "has agreed that the idea has value, and the Court will not ordinarily go behind that determination. The lack of novelty, in and of itself, does not demonstrate a lack of value." (81 NY2d at 478.) In contrast, as the Court further explains, where there has been no post-disclosure contract for use of the idea, proof of novelty is required to establish both that the user of the idea in fact obtained it from the plaintiff and that the idea had value, thus establishing consideration for the contract. (Id.) Apfel does state that where no post-disclosure contract has been made, "[a] showing of novelty, at least novelty as to the buyer," addresses these two concerns as to whether the user obtained the idea from the buyer and whether it had value. (Id.) However, this statement is dictum, as Apfel involved a post-disclosure contract which was found to obviate the requirement of any showing of novelty.
The First Department has endorsed this reading of Apfel, holding that
The court accordingly holds that Nadel is not persuasive authority that the novelty to the buyer standard applies to a breach of implied contract claim based on the use of ideas. Moreover, the parties have not cited, and the court's own research has not located, any New York appellate case holding that a novelty to the buyer standard applies to such a claim.
In any event, HarperCollins argues that the documentary evidence establishes as a matter of law that plaintiff's idea was not novel under either novelty standard. "The question of whether an idea is sufficiently novel or original to merit protection under New York law is amenable to summary disposition." (American Bus. Training Inc., 50 AD3d at 223, quoting Paul, 183 AD2d at 53.) Contrary to plaintiff's contention, this issue may be determined on a motion to dismiss, provided that the documentary evidence conclusively establishes lack of novelty as a matter of law. (See authorities cited supra at 740-741.)
In determining whether an idea is novel and thus merits legal protection, courts have applied a "stringent test." (Paul, 183 AD2d at 53.) An idea will not be considered novel if it is in the public domain. (Ferber v Sterndent Corp., 51 N.Y.2d 782 [1980].) Nor will an idea be found novel where it is merely a "creative variation" on an existing theme (Marraccini, 221 AD2d at 98), or a "clever or useful adaptation of existing knowledge." (Paul, 183 AD2d at 53; Surplus Equip. v Xerox Corp., 120 A.D.2d 582 [2d Dept 1986], lv denied 68 N.Y.2d 606 [1986].) "Improvement of standard technique or quality, the judicious use of existing means, or the mixture of known ingredients in somewhat different proportions — all the variations on a basic theme — partake more of the nature of elaboration or renovation than of innovation." (183 AD2d at 53 [internal quotation marks and citations omitted]; accord Oasis Music, 161 Misc 2d at 631-632; see also Nadel,
HarperCollins submits significant documentary evidence demonstrating that the idea for "sneaking" nutritious ingredients into children's food was not novel at the time plaintiff submitted her proposal to HarperCollins.
As demonstrated by the documentary evidence in this case, the idea of hiding healthy ingredients in foods likely to be accepted by children was, at best, a creative variation on preexisting ideas. (See Marraccini, 221 AD2d at 98.) The court accordingly holds that plaintiff's idea lacked the novelty in general necessary to support a cause of action for misappropriation. Even if a lesser standard of novelty to the buyer were to be found applicable to the breach of implied contract claim, plaintiff's idea also fails to satisfy that standard, as the idea was already in the public domain.
The court notes that nearly two years passed between plaintiff's submission of her proposal to HarperCollins and its
Defendant argues that the complaint must be dismissed on the independent ground that plaintiff's claims are preempted by federal copyright law. The Copyright Act, 17 USC § 301 (a), provides, in pertinent part, that "all legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright as specified by section 106 in works of authorship that ... come within the subject matter of copyright... are governed exclusively by this title." The exclusive rights protected by the general scope of copyright under 17 USC § 106 include the rights of reproduction, the right to produce derivative works (also referred to as adaptation), performance, distribution, and display. Under the well settled test for preemption, a state law cause of action will be barred where "(1) the particular work to which the claim is being applied falls within the type of works protected by the Copyright Act" and "(2) the claim seeks to vindicate legal or equitable rights that are equivalent to one of the bundle of exclusive rights already protected by copyright law." (Briarpatch Ltd., L.P v Phoenix Pictures, Inc., 373 F.3d 296, 305 [2d Cir 2004], cert denied 544 U.S. 949 [2005]; see also Computer Assoc. Intl., Inc. v Altai, Inc., 982 F.2d 693, 716 [2d Cir 1992].)
Preemption will not, however, apply where "an extra element is required instead of or in addition to the acts of reproduction, performance, distribution or display, in order to constitute a state-created cause of action." (Computer Assoc., 982 F2d at 716 [internal quotation marks and citation omitted]; accord National Basketball Assn. v Motorola, Inc., 105 F.3d 841, 850 [2d Cir 1997].) Thus, a state law claim will not be preempted "if the `extra element' changes the nature of the action so that it is qualitatively different from a copyright infringement claim." (Computer Assoc., 982 F2d at 716 [internal quotation marks and citations omitted].) Courts, at least in the Second Circuit,
In the instant action, there is no dispute that the first prong of the preemption test — the "subject matter" requirement — is met. While ideas are not copyrightable (Briarpatch Ltd., 373 F3d at 306; Lapine, 375 Fed Appx at 83), "both the copyrightable expression, and the uncopyrightable idea that underlies it, fall within the `subject matter of copyright' for preemption purposes." (Katz Dochrermann & Epstein, Inc. v Home Box Off., 1999 WL 179603, *3, 1999 US Dist LEXIS 3971, *7 [SD NY 1999]; accord Panizza v Mattel, Inc., 2003 WL 22251317, *3, 2003 US Dist LEXIS 17228, *7-8 [SD NY 2003].) Thus, although plaintiff's claims are based on a noncopyrightable aspect of her proposal — namely, her idea for the cookbook — such noncopyrightable material is a part of the copyrightable manuscript, and will be preempted by section 301 of the Copyright Act unless saved from preemption by an "extra element."
There is considerable dispute among the federal courts about whether, or under what circumstances, a state law claim for breach of an implied-in-fact or other contract is preempted by the Copyright Act. Substantial authority articulates the broad proposition that the implied promise to pay for an idea constitutes the "extra element" necessary to avoid preemption. (E.g. Grosso v Miramax Film Corp., 383 F.3d 965, 967 [9th Cir 2004], amended on other grounds 400 F.3d 638 [2005], cert denied 546 U.S. 824 [2005] [California claim for breach of implied-in-fact contract, involving promise to pay not for movie script but for idea "embodied in" script, is not preempted, as implied promise to pay for use of idea is the "extra element"]; Wrench LLC v Taco Bell Corp., 256 F.3d 446, 456 [6th Cir 2001], cert denied 534 U.S. 1114 [2002] [Michigan claim for breach of implied contract to pay for advertising concept is not preempted, as right to be paid for use of creative work is not one of the exclusive rights granted by copyright law, and "(t)he extra element
Other cases, although involving claims of implied promises to pay for the use of ideas, appear to be inconsistent with the above authority. While these cases do not explain their reasoning in any detail, they appear either to reject the proposition that a promise to pay for the use of an idea is sufficient to avoid preemption, or to construe the promises at issue as promises not to use copyrightable expression without authorization or as promises to pay for the use of copyrightable expression. (See e.g. Smith v New Line Cinema, 2004 WL 2049232, *5, 2004 US Dist LEXIS 18382, *13 [SD NY 2004] [although plaintiff claimed movie was "based on" his screenplay, not that the screenplay itself was used, court held that the "state law right to receive credit and compensation for the alleged unauthorized use of (plaintiff's) screenplay is equivalent to the exclusive rights protected by federal copyright law"]; Markogianis v Burger King Corp., 1997 WL 167113, 1997 US Dist LEXIS 4452 [1997], supra [distinguishing between implied contract claims for compensation for disclosure of ideas, which cases have held not preempted, and claims for implied promises not to use or copy material within the subject matter of copyright, which have been held preempted because not "qualitatively different" from copyright infringement].) Recently, in Montz v Pilgrim Films & Tel., Inc. (606 F.3d 1153, 1158 [9th Cir 2010], reh en banc granted 623 F.3d 912 [2010]), the Ninth Circuit took pains to distinguish between a claim for breach of an implied promise to pay for the use of an idea, which its prior opinion in Grosso had held was not preempted, and the claim at issue in Montz for breach of an implied promise not to use the plaintiffs' ideas without their consent. The court held the latter preempted because it "violated the plaintiffs' exclusive rights to use and to authorize use of their work — rights equivalent to those of copyright owners." Noting that the plaintiffs also alleged a right to compensation for the use of their ideas, the court nevertheless held that
Another line of authority, developed in cases involving alleged breaches of licensing agreements and not generally expressly applied in cases involving promises to pay for ideas, holds that
However, this authority has also been criticized, with courts expressly rejecting American Movie Classics Co., based on the reasoning that "[t]ort-like copyright infringement claims, unlike breach of contract claims, do not require a promise by the defendant to refrain from using protected subject matter," and that the contractual promise is therefore the extra element. (Architectronics, Inc. v Control Sys., Inc., 935 F.Supp. 425, 438-439 [SD NY 1996]; see also eScholar, LLC v Otis Educ. Sys., Inc., 387 F.Supp.2d 329, 333 [SD NY 2005] ["(E)xistence of explicit contractual rights makes a breach of contract claim qualitatively different from a claim for copyright infringement"].)
Summarizing the extensive case law, a federal district court recently concluded that there are two lines of cases establishing
This court suggests, however, that at least some of the cases in the differing lines may be reconciled, and that it is the nature of the promise that is material in determining whether a contract claim is preempted. A leading treatise on copyright law, apparently seeking middle ground, reasons that "pre-emption should be found absent to the extent that a breach of contract cause of action alleges more than simply reproduction (or adaptation, distribution, etc.) of a copyrighted work." (1 Nimmer On Copyright § 1.01 [B] [1] [a] [2010].) The cases, however, lack clarity on the issue of whether the promise on which the breach of contract claim is based is coextensive with the rights protected by the copyright law. In particular, clarification is needed on the circumstances under which the use of an idea, as opposed to the verbatim copying of the tangible expression in which the idea was presented to the defendant, should be treated as qualitatively different from copyright infringement.
In this case, the court need not finally determine whether plaintiff's allegation of a promise to pay for an idea embodied in her tangible book proposal is sufficient to avoid preemption, as the court has held above that plaintiff's complaint does not otherwise state a cause of action for breach of implied contract. Nor would it be appropriate to reach the issue on this motion as briefed. While the parties have acknowledged the conflict in authority over whether a promise to pay is sufficient, they have not undertaken close analysis of the reasoning of the conflicting authorities, and have not argued the rationale for preferring one line of cases over the other. Nor have they addressed New York case law on the preemption issue. (See e.g. Meyers v Waverly Fabrics, Div. of Schumacher & Co., 65 N.Y.2d 75 [1985]; Morris v Putnam Berkley, Inc., 259 A.D.2d 425 [1st Dept 1999].)
The law governing preemption of state misappropriation or unfair competition claims does not reflect the same lack of uniformity as that governing preemption of contract claims. It is well settled that misappropriation claims grounded solely in the use of a plaintiff's protected expression are preempted by the Copyright Act. (E.g. Katz Dochrermann & Epstein, Inc.,
The complaint alleges that Seinfeld defamed Lapine by accusing Lapine of making "a false and opportunistic claim of plagiarism against Seinfeld's wife." (Complaint ¶ 47.) More particularly, plaintiff alleges that "to deflect attention from the mounting public accusations of plagiarism against his wife, defendant Jerry Seinfeld used an appearance on the immensely popular CBS television program, Late Show With David Letterman, to launch a malicious, premeditated and knowingly false and defamatory attack," and that "Seinfeld used his appearance on [E! News] again to make outrageously false statements about Lapine's mental health." (Id. ¶¶ 33, 39.) The allegedly defamatory statements include calling plaintiff "a wacko" and "a nut" (id. at 34-36, 39), stating that plaintiff was "angry and hysterical," making the point that Lapine "was a mentally unhinged stalker of the Seinfelds," and observing that "many of the three-name people do become assassins." (See id. ¶¶ 35-36.)
It is well settled that "expressions of an opinion `false or not, libelous or not, are constitutionally protected and may not be the subject of private damage actions.'" (Steinhilber v Alphonse, 68 N.Y.2d 283, 286 [1986], quoting Rinaldi v Holt, Rinehart & Winston, 42 N.Y.2d 369, 380 [1977], cert denied 434 U.S. 969 [1977].) It is further settled that whether a statement expresses fact or opinion is a question of law for the court. (Id. at 290.) The determination as to whether a statement is fact or opinion must be based on "what the average person hearing or reading the communication would take it to mean." (Id.) Thus, "[t]he dispositive inquiry ... is `whether a reasonable [viewer] could have concluded that [the statements were] conveying facts about the plaintiff.'" (Gross v New York Times Co., 82 N.Y.2d 146, 152 [1993], quoting 600 W. 115th St. Corp. v Von Gutfeld, 80 N.Y.2d 130, 139 [1992], cert denied 508 U.S. 910 [1993]; accord Mann v Abel, 10 N.Y.3d 271, 276 [2008], cert denied 555 US ___, 129 S.Ct. 1315 [2009].) The inquiry generally entails an examination of
The court must examine "the content of the whole communication as well as its tone and its apparent purpose." (Steinhilber, 68 NY2d at 293; accord Immuno AG. v Moor-Jankowski, 77 N.Y.2d 235, 254 [1991], cert denied 500 U.S. 954 [1991].)
Further,
The latter are ordinarily not actionable because "a proffered hypothesis that is offered after a full recitation of the facts on which it is based is readily understood by the audience as conjecture." (Id. at 154.) The Court of Appeals
Applying these standards, the court finds it inconceivable that a reasonable viewer would have believed that Seinfeld's statements were conveying facts about Lapine. In opposing Seinfeld's motion to dismiss, plaintiff does not rely on the allegations of the complaint that Seinfeld characterized her as a
Rather, plaintiff rests her defamation cause of action on the claim that Seinfeld defamed her by conveying the "unmistakable message" to television viewers "that Lapine had fabricated opportunistic allegations of plagiarism against his wife." (Plaintiff's mem of law in opposition at 1, 6.) Assessment of this defamation claim requires consideration of both the context in which the statements were made and their content. Seinfeld, a well-known comedian, made the statements in question primarily on the Letterman show, a late-night entertainment program, during a comedic interchange between Seinfeld and Letterman. The interchange was repeatedly punctuated by laughter from the audience, and covered a number of topics besides Lapine's claim of plagiarism, including Seinfeld's promotion of his new movie and anecdotes about parenting. In describing what he termed the "cookbook controversy," Seinfeld related the circumstances that led to his wife's publication of her cookbook, then stated that there was a wacko (unnamed) who had a similar book and who, sensing that this could be her "wacko moment," accused his wife as follows: "You stole my mushed-up
The court has considered plaintiff's remaining contentions and finds them to be without merit.
It is accordingly hereby ordered that plaintiff's complaint is dismissed with prejudice.
Throughout this opinion, plaintiff's idea for the cookbook, and her ideas for the techniques and recipes necessary to implement the cookbook idea, are collectively referred to as plaintiff's "idea."
The court notes that plaintiff does not seek leave to replead to allege industry custom in order to supply the price term of the alleged contract. Indeed, plaintiff makes no showing whatsoever on this motion that the publishing industry is interested in purchasing ideas for (cook)books, as opposed to saleable manuscripts expressing the ideas.
Plainly, no viewer could have regarded this statement as an accusation that plaintiff was a would-be assassin or in any way dangerous.
Seinfeld's statements on E! News were much briefer. Similarly, they referred to Lapine (unnamed) as a "nut job" who "comes outta the woodwork." "She thinks she invented vegetables [laughter]. And she's accusing my wife of stealing her mushed-up carrots." (Transcript, plaintiff's exhibit J.)
