A private commercial establishment (such as a restaurant) is effectively giving you a license to enter their property (as owner or leaseholder; it doesn't matter) and undertake various actions therein. That license can be subject to any and all conditions they see fit to attach to it, including ones they make up on the spot (such as, for example, taking photos without permission). However, all they can do if you violate their terms is eject you from the premises. They may claim damages for trespass to property, but I don't see what those damages could be in this case. (Any "publicity cost" from the photos would not be sufficiently foreseeable and/or proximate to yield damages.)
So, a business can "make the rules," but their only recourse if you violate those rules is to tell you to leave. Period.
I don't think it would be considered a license. I see it more like credit. It's like filling your car up before paying for it. If they turn the pump on, it is assumed that you are to complete the transaction before you leave. The gas station is saying, "You're good for it, I'm giving you the benefit of the doubt." When you buy a ticket for a concert, that could be considered a license, since it is assumed that you agree to all the rules before paying for it. Once it's paid for, then you have the license to enter the venue at the specified time, and follow the rules of the venue. Licenses are not automatic. They require an agreement, even if it is a statement of "By using this ticket, you agree to be bound by these rules" printed somewhere.
Fir the recourse, say I own a restaurant, and someone breaks the rules. Maybe they tried to use a credit card to pay for the meal which I don't accept. Or they were smoking in a non-smoking section. The only thing I can do is ask them to leave? Both of those are criminal acts in some areas, but the credit card issue is across the country. There are legal remedies for business owners in these situations. It could be a restraining order so that person never steps foot in the place again, or a lawsuit to stop the publication or dissemination of fraudulently obtained photographs.
If this guy had recreated the scene at home down to the same table settings, then he could publish those pictures. It becomes a recording of his own work, the work was done by him, and he gave himself permission to use the property for that use. Then an argument could be made of infringing on intellectual property rights as well. If he makes it at home for the enjoyment of his friends and family, then there is no harm done to the restaurant. If he claims it as his own, that could potentially be seen as damaging to the restaurant.
The owner/lessee/tenant/manager has the right and the responsibily to see to the comfort and safety of staff and customers. If that person's vision of comfort and safety includes the banning of photography, then photography is banned. Period. Someone who takes a picture without permission is in violation of the restaurant's rules. The restaurant has to have some kind of legal recourse.
Again, I'm not agreeing with the chef. The whole thing got blown out of proportion. But the blogger in question has no real legs to stand on. Had the police gotten involved at the time of the incident, the photographs could be considered evidence, which could not be released without a court order. If I make a secret recording at a concert, my equipment would be confiscated if discovered, and if it were returned to me with an erased tape, then I have no recourse against that venue. I still have what I walked in with. I just don't have that recording. If security were to smash the recorder to bits, then I have recourse.
They can't keep something of yours, but they can make sure that their property does not leave with you.
Edited by FistFullaRoux, 08 January 2006 - 01:26 AM.