TV Host Elisabeth Hasselbeck's 'G-Free Diet' Guide Did Not Infringe Other Self-Help Book

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The author of a book on how to live with celiac disease lost her court battle against television personality Elisabeth Hasselbeck Dec. 3 after the U.S. District Court for the District of Massachusetts ruled that Hasselbeck's book, also about living with celiac disease, was not substantially similar to the author's book (Hassett v. Hasselbeck, D. Mass., no. 09-12034-MLW, 12/3/10).

Granting Hasselbeck's summary judgment motion, the court ruled that after the unprotected elements of the author's book were identified and removed from consideration, a factfinder would be compelled to conclude that no substantial similarity exists between the two works.

Allegations of Infringement.

Susan Hassett is the author of the book Living With Celiac Disease--which aims to help those with the digestive disorder celiac disease cope with their illness. She obtained a copyright registration for the book in 2008.

In 2009, Center Street Hachette Book Group publishedtalk show host Elisabeth Hasselbeck's book, The G Free Diet: A Gluten-Free Survival Guide, which was written by Hasselbeck and a ghostwriter.

Hassett sued Hasselbeck, Center Street, and the ghost writer, alleging copyright infringement. She claimed that she sent a copy of Living With Celiac Disease to Hasselbeck, who then plagiarized the work. Hassett argued that Hasselbeck's book contains actual copying of and is substantially similar to Living With Celiac Disease.

Judge Joseph Tauro dismissed the lawsuit after Hassett's attorney, Richard Cunha of Swansea, Mass., declined to pursue it, stating that, although there were instances of plagiarism, he was not sure they were egregious enough for Hassett to recover money damages.

Hassett, pro se, refiled her complaint in November 2009.

In August, Hasselbeck moved to dismiss the complaint due to a lack of substantial similarity.

No Substantial Similarity.

Substantial similarity is measured by the ordinary observer test, which provides that two works will be said to be substantially similar if a reasonable, ordinary observer, upon examination of the two works, would conclude that the defendant unlawfully appropriated the plaintiff's protectable expression.

Judge Mark L. Wolf said that the sole question before the court in this case was whether a rational factfinder, correctly applying the pertinent legal standards, would be compelled to conclude that no substantial similarity exists between Living With Celiac Disease and The G Free Diet.

“The court finds that a rational factfinder would be compelled to conclude that no substantial similarity exists because any similarities arise out of elements of Living not protected by copyright law,” the court said.

Both books are self-help books designed to assist people who have celiac disease, the court said, acknowledging that there are similarities between the two works, including their listings of the symptoms of celiac disease and their descriptions of the symptoms experienced by the respective authors. Further, the court noted, both works, in part, contain lists of foods and other products likely to contain gluten, offer ideas to avoid contact with gluten in everyday life, and discuss problems related to children with celiac disease.

“However, even if these similarities create an impression of overall similarity, they will not establish substantial similarity if the 'impression flows from similarities as to elements that are not themselves copyrightable,'” the court said, emphasizing that the above listed similarities were merely of unprotected elements of the works.

The court said that the remaining, protectable similarities were outweighed by the points of dissimilarity and were, in the context of the work, qualitatively and quantitatively minimal. The court said:  

Indeed, although there is some overlap in subject matter, G Free and Living are very different books. Living is written in an informal style, emphasizes the hardships associated with celiac disease, and devotes almost 130 of its 249 pages to describing recipes for gluten-free cooking. G Free, on the other hand, is written in a more formal style, assumes a much more positive tone, and offers a total of four recipes comprising six pages of text. 




Thus, the court said that there was no substantial similarity between G Freeand Living, and it ruled that summary judgment for Hasselbeck was appropriate.

May Appear Unfair, But Is Essence of Copyright.

The court recognized that Hassett worked hard and under difficult circumstances to assemble the facts and ideas included in her book. Further, the court acknowledged that it can seem unfair that Hasselbeck would be allowed to appropriate some of those facts and ideas and incorporate them into a new work but not be liable.

“However, this perceived unfairness is not an unforeseen byproduct of the copyright law, but 'is, rather, the essence of copyright and a constitutional requirement,'” the court said, quoting Feist Publications Inc. v. Rural Telephone Service Co., 499 U.S. 340, 349, 18 USPQ2d 1275 (1991).

“Consequently, to paraphrase the Supreme Court, great praise may be due to Hassett for her industry and enterprise in publishing her book, which may be of great utility to those suffering from celiac disease. The law does not, however, authorize her to be rewarded in the manner she requests.”

Hasselbeck was represented by Laura O'Boyle of Gibson Dunn & Crutcher, New York. Hassett represented herself.

By Nathan Pollard

Opinion at