Is Posting Restaurant Pics Actionable

[Pontormo]

Listen, you all. I have to dash and get something done before 5 PM, so I will be brief here, though there really is not much to tell.

However, I called the attorney and spoke to him at length about the situation. He is not someone who feels very computer literate, so I talked him through the steps he needed to take to find this thread and to click the link to DcFoodie's blog.

He chuckled quite a bit, but mostly was startled to see what interest has been generated by the matter. He had absolutely no idea. Were I to characterize his reaction in one word, I would say "astonishment." There was absolutely no rancor or distress, just surprise. O, brave new world!...that sort of thing, if not quite voiced with Miranda's enchanted delight.

I gather, though I hasten to add this is an impression and not a confirmed fact, that he considers the matter closed. DCFoodie says he will not post the photographs and the attorney has no reason not to take him at his word.

The lawyer respects his client enormously and is very aware of ALL aspects of her reputation. He is most proud of her standing with the critic of The Washington Post and quotes the first line of one of his reviews from memory, with warmth in his voice. I had too much respect for the nature of attorney-client privilege to probe very much. Perhaps he is a brilliant actor who is trying to come across as a simple country guy who enjoys being paid in delicious meals instead of cash every so often. However, I also got the impression that he hasn't analyzed his client's motives and feelings at great length, let alone all the ghastly nuances of the situation since he thought this a minor incident and the matter had been addressed.

Now that he has seen his posted letter and is aware of eGullet, he will let Ms. Greenwood know that her actions have generated this much heated discussion.

[divalasvegas]

Listen, you all.  I have to dash and get something done before 5 PM, so I will be brief here, though there really is not much to tell.

However, I called the attorney and spoke to him at  length about the situation.  He is not someone who feels very computer literate, so I talked him through the steps he needed to take to find this thread and to click the link to DcFoodie's blog.

He chuckled quite a bit, but mostly was startled to see what interest has been generated by the matter.  He had absolutely no idea.  Were I to characterize his reaction in one word, I would say "astonishment."  There was absolutely no rancor or distress, just surprise.  O, brave new world!...that sort of thing, if not quite voiced with Miranda's enchanted delight.

I gather, though I hasten to add this is an impression and not a confirmed fact, that he considers the matter closed.  DCFoodie says he will not post the photographs and the attorney has no reason not to take him at his word.

The lawyer respects his client enormously and is very aware of ALL aspects of her reputation.  He is most proud of her standing with the critic of The Washington Post and quotes the first line of one of his reviews from memory, with warmth in his voice.  I had too much respect for the nature of attorney-client privilege to probe very much.  Perhaps he is a brilliant actor who is trying to come across as a simple country guy who enjoys being paid in delicious meals instead of cash every so often.  However, I also got the impression that he hasn't analyzed his client's motives and feelings at great length, let alone all the ghastly nuances of the situation since he thought this a minor incident and the matter had been addressed.

Now that he has seen his posted letter and is aware of eGullet, he will let Ms. Greenwood know that her actions have generated this much heated discussion.

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Well, I'll be even briefer: YOU GO GIRL!

[rocketman]

As one who likes to take restaurant photos of food and kitchens I generally ask if the restaurant minds unless I already know they don't mind, although I must admit I have not asked on every occassion. The only time I started photographing and was asked to stop was at Per Se shortly after it re-opened (No, I was not using flash). They did ask in a nice way and I complied without a problem. They did later let me take photos in the kitchen, though. I have had restaurants refuse to let me take photos when i have asked - most recently at Grimaldi's Pizza in Brooklyn when I asked if I could photograph the making of the pizzas and the oven. They had no problem with my taking photos of our own pizza, however.

I respect a restaurant/chef's desire to not have photos of their work published or taken, but this is a new low. My own personal preference is to patronize places that cater to my artistic needs (folly or not that they are) in addition to my gastronomic needs.

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Like to know what everyone thinks about TK not allowing pictures in his restaurant. Lots of you just butchered this woman who has the same policy and is not scared to follow through on her policy. Some called for a boycott. Shouldnt Thomas Keller now be put in the same category. Should we now not patronize Per Se. Fat Guy, what do you think? What about others. Lets not be scared of TK now folks. Lets pick on everyone equally.

RM

[bilrus]

Like to know what everyone thinks about TK not allowing pictures in his restaurant.  Lots of you just butchered this woman who has the same policy and is not scared to follow through on her policy.  Some called for a boycott.  Shouldnt Thomas Keller now be put in the same category. Should we now not patronize Per Se.  Fat Guy, what do you think?  What about others.  Lets not be scared of TK now folks.  Lets pick on everyone equally. 

RM

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I think this is the key difference here:

The only time I started photographing and was asked to stop was at Per Se shortly after it re-opened (No, I was not using flash). They did ask in a nice way and I complied without a problem. They did later let me take photos in the kitchen, though.

Much different than a litigious letter.

And part of the reason for the uproar, at least in DC circles, is that this plays right into the reputation Chef Greenwood has and has earned and, for all accounts, takes great pride in.

[Busboy]

An amusing and detailed account of the incident by DCFoodie's wife, amalah, here.

Which raises the question: with all the blogging they do, how did they have time to have a baby?

[mrbigjas]

An amusing and detailed account of the incident by DCFoodie's wife, amala, here.

Which raises the question: with all the blogging they do, how did they have time to have a baby?

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what do you mean? it only takes a few minu.... uh, i've said too much already.

[rocketman]

Like to know what everyone thinks about TK not allowing pictures in his restaurant.  Lots of you just butchered this woman who has the same policy and is not scared to follow through on her policy.  Some called for a boycott.  Shouldnt Thomas Keller now be put in the same category. Should we now not patronize Per Se.   Fat Guy, what do you think?  What about others.  Lets not be scared of TK now folks.   Lets pick on everyone equally. 

RM

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I think this is the key difference here:

The only time I started photographing and was asked to stop was at Per Se shortly after it re-opened (No, I was not using flash). They did ask in a nice way and I complied without a problem. They did later let me take photos in the kitchen, though.

Much different than a litigious letter.

And part of the reason for the uproar, at least in DC circles, is that this plays right into the reputation Chef Greenwood has and has earned and, for all accounts, takes great pride in.

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No difference in my opinion. If fact, one might say this was expected from Chef Greenwood and not from TK so does this make TK a little less California......a little less laid back, perhaps a little more like Chef Greenwood. No telling if a litigious letter would have followed if he had not stopped taking the picutres.

Further, this thread is not really about Chef Greenwood. It has turned into a thread about the rights of the consumer or eater to photograph the food we are purchasing. In that light, I ask the question of whether TK and Per Se have gone to far in asking people not to take pictures their food that notwithstanding quality costs a ton. It is the same thing that Chef Greewood. Why would the reaction be any different from the people on this board?

RM

[Tess]

Further, this thread is not really about Chef Greenwood.  It has turned into a thread about the rights of the consumer or eater to photograph the food we are purchasing.  In that light, I ask the question of whether TK and Per Se have gone to far in asking people not to take pictures their food that notwithstanding quality costs a ton.  It is the same thing that Chef Greewood.  Why would the reaction be any different from the people on this board?

RM

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Because of the way the matter was handled?

[Holly Moore]

I had a similar situation at Trio when Grant Athatz was still cooking there. I asked the maitre d' if it was permissable to take pictures. He said they preferred photos not be snapped in the dining room, but if I would loan him my camera he'd give it to Grant who would snap pics of my meal. I did, he did, Grant did. Grant also included some behind-the-scenes pics of the kitchen.

In a restaurant like Trio, Per Se or the French Laundry they have every right to expect a level of decorum that does not include flash bulbs a popping all over the dining room. I think that expectation diminishes with the level of cuisine. But both Trio and Per Se were willing to take pictures of their "art." And both Trio and Per Se handled the situation with grace.

That is a world of difference from a "chef-the artist" throwing a dining room temper tantrum followed up by a baseless lawyer letter.

[bilrus]

No difference in my opinion. If fact, one might say this was expected from Chef Greenwood and not from TK so does this make TK a little less California......a little less laid back, perhaps a little more like Chef Greenwood.  No telling if a litigious letter would have followed if he had not stopped taking the picutres.

Further, this thread is not really about Chef Greenwood.  It has turned into a thread about the rights of the consumer or eater to photograph the food we are purchasing.  In that light, I ask the question of whether TK and Per Se have gone to far in asking people not to take pictures their food that notwithstanding quality costs a ton.  It is the same thing that Chef Greewood.  Why would the reaction be any different from the people on this board?

RM

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In my opinion, no, Keller and Per Se have not goe too far. If that is their policy, and they are up front about it, so be it. You don't have to agree with it or understand the reasons behind it, you can even complain about it, but you do have to respect it.

Edited January 3, 2006 by bilrus (log)

[OnigiriFB]

Like to know what everyone thinks about TK not allowing pictures in his restaurant.  Lots of you just butchered this woman who has the same policy and is not scared to follow through on her policy.  Some called for a boycott.  Shouldnt Thomas Keller now be put in the same category. Should we now not patronize Per Se.   Fat Guy, what do you think?  What about others.  Lets not be scared of TK now folks.   Lets pick on everyone equally. 

RM

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I think this is the key difference here:

The only time I started photographing and was asked to stop was at Per Se shortly after it re-opened (No, I was not using flash). They did ask in a nice way and I complied without a problem. They did later let me take photos in the kitchen, though.

Much different than a litigious letter.

And part of the reason for the uproar, at least in DC circles, is that this plays right into the reputation Chef Greenwood has and has earned and, for all accounts, takes great pride in.

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No difference in my opinion. If fact, one might say this was expected from Chef Greenwood and not from TK so does this make TK a little less California......a little less laid back, perhaps a little more like Chef Greenwood. No telling if a litigious letter would have followed if he had not stopped taking the picutres.

Further, this thread is not really about Chef Greenwood. It has turned into a thread about the rights of the consumer or eater to photograph the food we are purchasing. In that light, I ask the question of whether TK and Per Se have gone to far in asking people not to take pictures their food that notwithstanding quality costs a ton. It is the same thing that Chef Greewood. Why would the reaction be any different from the people on this board?

RM

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I disagree. I don't see this so much as a matter of not being able to take pictures in such and such restaurant as it is with the way this matter was handled. I think any restaurant which is a privately owned business that can for whatever reason refused business with you can dictate what it likes IN the restaurant. I personally would not villify any restaurant/chef that did not wish pictures taken. BTW I wonder if the Per Se request was due to disruption of other dining patrons since they did allow pictures in the kitchen. If it were that important to me then I would simply cease to frequent those restaurants. What stands out to me it the cease and desist letter sent to the blogger. I think in doing this the chef went overboard. As far as I see Jason stopped when requested and did NOT post any pictures. So why the letter? IMHO the chef is an ass and I hope they lose business because of this. I don't care how good the food, if I were treated this way there are many other restaurants I could frequent.

[jackal10]

A colleague remarks that since the restaurant is private property the owner can make what rules they like. However they must reasonably inform the user beforehand.

There would be less of an issue (at least in the UK) if you were to take the photograph though the window from the road or similar public place, provided you did not photograph the other diners without their permission, as they may have privacy expectations.

There is similar case law about photographing artwork in exhibitions, where the painting is long out of copyright.

Edited January 3, 2006 by jackal10 (log)

[cdh]

Insofar as the issue is license to be on the restaurant's (or museum's) property) they can set whatever inane rules they would like to, and can punish those who don't comply with them by ejecting them from the property. Ownership of copyright to (and right to use/publish) photographs taken (of non-people and non-copyrighted works), with or without permission, stay with the photographer under copyright law.

Edited January 3, 2006 by cdh (log)

[philadining]

Like to know what everyone thinks about TK not allowing pictures in his restaurant....

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When a few eGulleteers were at Per Se, we asked if it would be OK, and our server told us that we could take pics as long as there was no flash. We even were so bold as to post them here. That being said, we were discrete, and I would have understood if they had said no, or asked us to stop at some point. Perhaps there is a no-photo policy in place and the person we asked didn't know it, I wouldn't have felt put-out if someone politely asked me to stop. I would have been annoyed if I got an email threatening me if I didn't remove them from eGullet.

Even as an avid photographer in restaurants, I can see where it might be disruptive. My meals at Morimoto have been marred significantly, and my retinas scarred, by the blaze of flashes that go off whenever the chef decides to greet folks out in the dining room. I find that really annoying, but it's probably nearly impossible for celebrity chefs to politely refuse to pose for pics these days. On balance it's probably smart business to let it happen even if it ruins the serene vibe of the restaurant.

I think it's fine if a restaurant doesn't want customers shooting pics, but they ought to be able to communicate that in a calm, inoffensive way.

[jackal10]

Ownership of copyright to  photographs taken, with or without permission, stay with the photographer under copyright law.

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That is not quite right. Although the photograph is the photographers copyright, if it includes substantially a copyrighted work or a design right work then it may be a derivative work (like a translation), and cannot be published without the original IPR owners permission. This occurs, for example, where a picture includes most of an advertising hoarding; in principle (an in practice for most TV and film work) you must get release from the advertiser.

I think that (at least in the UK) a plating arrangement would be covered by design right , unless the chef has applied for a Registered Design. If he has served more than 50 similar plates then it no longer counts as artisitc copyright (70+ years from death of the author) but industrial copyright (25 years from first publication)

Unless the customer has comissioned the work explicitly, the IPR remains with the chef, even though the customer has purchased the work, just as purchasing a CD or a book does not transfer the copyright

Maybe we should sell edible tags with the copyright © or design right (DR) logo for chefs to add to the food at the pass...

Edited January 4, 2006 by jackal10 (log)

[Arey]

eeww....... so does this mean if you eat there, you can't take it with you?  And if you can't, how, pray tell, does one leave it? 

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Simple. Ask where the restrooms are, and surrender your camera before using them.

Edited January 4, 2006 by Holly Moore (log)

[Swisskaese]

Well, Swiss, she cooks because she's an artist, NOT because she wants to nuture you like a bubby. Personally, I prefer the latter.

I wonder after seeing a handful of responses from bloggers who've related similar reactions, if this is more prevalent in the US? Would we see camera weilding bloggers admonished or threatened in other countries? Is it a reflection of the letigious American nature?

I've been reflecting on the Studio Kitchen thread in the Pennsylvania forum, where diners post pics of every course at most every dinner event there. It's a real treat to see Shola's breathtaking work. And, it's spun off into another fantastic thread 'Inspired by Studio Kitchen" where meals and platings are prepared by home chefs attempting to duplicate offerings there. If this isn't the sincerest form of flattery, I don't know what is. Or, are these insipid dilettants infringing on Shola'a propriAtary food musings??

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The name is Swisskaese and I am not Polish, therefore I do not have a Bubbe.

I do not think Chefs are artists. Matisse is an artist. Some chefs are master craftsmen.

I do not expect a chef to be my grandmother. What I do expect is that if for some reason they do not wish to have their food photographed that they post it somewhere visible, i.e. the menu or at the front door. I do not make a habit of taking my camera to a restaurant, but I do not see anything wrong with it. I enjoy seeing pictures here on eGullet and in some way it encourages me to visit that restaurant. In anycase, it is free advertising for a restaurant. I don't see what the big deal is.

Edited January 4, 2006 by Swisskaese (log)

[woodburner]

Sad to see the suffering of cranial anal inversion in the kitchen.

You need to get a photo of her brushing her teeth.

woodburner

[hjshorter]

An amusing and detailed account of the incident by DCFoodie's wife, amala, here.

Which raises the question: with all the blogging they do, how did they have time to have a baby?

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what do you mean? it only takes a few minu.... uh, i've said too much already.

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Damn! You beat me to it.

Seriously, the difference seems to be that Chef Greenwood was rude about it while he was there, and threatening Jason with legal action was overkill and guaranteed to produce bad feeling. (And from what I understand, the plating at Buck's does not approach TK's level)

[Tapenade]

Well, I am not a lawyer (probably to the relief of my friends), but I have been a journalist on and off for the last 25 years, and I have had other reasons to learn something about the laws of defamation and of privacy. Admittedly, there is some difference between these laws in the USA on the one hand, and the UK (where I grew up) and Israel (where I live) on the other, but it isn't a huge difference.

Everyone, as a general rule, is entitled to have his privacy protected from the public eye. So, if Carol Greenwood had, hypothetically, been photographed by DC Foodie having sex in her home, or smoking a joint there, or whatever, she would be completely entitled to seek a cease and desist order, and to sue to damages, because this is her private life. She could even try to get a seek and desist order if, say, Foodie had photographed her private kitchen, and revealed that she is a slob who leaves rotting vegetables in the sink, because even though this might reflect on her public reputation, she could legitimately claim that this is no proof that she is also messy and unhygeinic in running her restaurant. A jury might, of course, disagree.

However, a restaurant is by definition a public place and it is in the public interest to know whether it is clean and whether the food lives up to the reputation that the owner is trying to foster. It isn't Carol G's private home, there is no explicit or implicit contract term that says its clients may not take photographs, it is not a classified military or government installation (or a court in session, which usually bans photography); and the only legitimate reason I can think of for asking clients not to take photographs is that the flash disturbs other diners. Not only that, but a restaurateur is almost by definition a public figure who seeks public attention in order to publicise her or his business, and the law in general says that the public has a legitimate, although not disproportionate, interest in the affairs of public figures. That's certainly the case in Israeli statute law.

What about the law of defamation, whether libel or slander? Yes, everyone is entitled to have his good name protected, which is why there is a law of defamation. But he or she is not entitled to have misdeeds hushed up by this law, which is why it's always a good defence if you have published the truth. If Foodie published undoctored photographs that are a fair representation of what was served in the restaurant, or even the dirty dishes in the kitchen, or whatever, that is the truth, and it's a sufficient defence. If, of course, the photos were manipulated to make them look worse than what was really there, or even if they're tendentious -- say, taken from an angle that misrepresents what was really there -- then that is no defence against a libel action. Foodie is just as much entitled to take and publish photographs as if he were a journalist, but of course he's also bound by the same rules of fair play.

There's one last point. I don't know if this is the case in the USA, but in England, it's a tort to threaten someone with a lawsuit simply in order to intimidate him. In other words, if Foodie tells Carol G to get stuffed, which is most certainly what I think he should do, and she backs down after having already sent this intimidating letter by means of her attorney, then Foodie would be entitled to sue her for trying to intimidate her. And it would completely serve her right.

DC Chef Carol Greenwood, known for her fine cooking and inflexibility, has sic'd her lawyers on blogger DC Foodie, for taking and publishing pictures of his dinner. "You are hereby notified that should you show any of the said pictures on your website, an action will be brought against you immediately for specific damages, together with the court costs and attorneys fees in the said action."

Story here.

Can she do that? Should she?

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[Holly Moore]

There's one last point. I don't know if this is the case in the USA, but in England, it's a tort to threaten someone with a lawsuit simply in order to intimidate him.

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In the US threatening to sue, suing, and being sued all considered forms of networking or rites of passage.

Edited January 4, 2006 by Holly Moore (log)

[docsconz]

I think that therre is a huge difference between what happened to me at Per Se and what has been described here. While I was being discreet at Per Se, they did ask nicely and I nicely complied. They did not threaten me in any way or try to make me give up the photos that I had already taken. They simply asked. I have no problem with that even though I would have preferred to continue photographing. I would have had a huge problem with Chef greenwood's approach.

[Rebel Rose]

Yeah way... the Turkish restaurant's name was Dardanelle's. If you sent something back he'd send you out the door!!! His wife, who worked the front of the house was a practising dominatrix. Can't imagine how they tenderized chickens.

An amusing and detailed account of the incident by DCFoodie's wife, amalah, here.

Omigod. I just read the amalah.com post and I am holding my sides laughing. Actually I'm doing that Suzanne Somers kind of snort and my SO is looking at me strangely.

And peeps, this is one thread you really should read from start to finish. Trust me.

[Bux]

I think that therre is a huge difference between what happened to me at Per Se and what has been described here. While I was being discreet at Per Se, they did ask nicely and I nicely complied. They did not threaten me in any way or try to make me give up the photos that I had already taken. They simply asked. I have no problem with that even though I would have preferred to continue photographing. I would have had a huge problem with Chef greenwood's approach.

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There are restaurants in which I feel comfortable taking photos of the food and those in which I am far less comfortable just pulling a camera out of my pocket. I think the appearance of a mobile phone, or a camera, can be seen as disruptive by some. If a chef or restaurant owner feels it is disruptive to his environment, or even if he just fears it may be to some of his diners, I would have no problem honoring his request not to take photos, just as I am willing to abide by any dress code. Of course I reserve the right to eat elsewhere if I find his rules are unreasonable, but I understand his need to maintain the ambience he's trying to sell.

I am not one of those who believe the customer is always right. When I hear of a disagreement between a diner and a chef, owner or waiter, more often than not, I've found myself taking management's side. However, it is a hospitality business and how a request is made is very much the issue.

I once tried to photograph some rolls and croissants in a shop in Paris and was met with the sales clerk's arms waving in front of my camera. Fine, I took my purchase outside and was about to photograph the goods I bought when it occurred to me that I had no reason to give the shop any publicity it didn't want.

[Tapenade]

I'd have to disagree with most of what Jackal says: I think he is drawing an over-broad analogy with our common world, that of high-tech business.

The whole law of copyright, and design rights which are a derivative of copyright, has to be understood in context. It was created in order to prevent someone from plagiarism and passing off another person's original work as his own. But there is what is called a 'fair use doctrine,' which means that one has a right to quote reasonably (which also means that one has to attribute the quotation) from another person's original work even while the copyright is still extant. If tomorrow I write an article quoting from a play written yesterday, or a political speech, and I do not pretend that it's my own creative work, then there is no breach. Were that not the case, it would not be possible to carry our academic or business research (and, Jackal, in our world, it wouldn't be possible to quote analysts' resports or similar material in our business plans!). It is usually the case that in writing a book, one requests permission to quote extensive passages from other works, and somewhere in the foreword says "passages from Sophocles' 'Antigone' appear by courtesy of the author's estate," or whatever.

A plating arrangement could certainly be covered by design right, if the plating arrangement itself were the creative work in question, say in a competition for the most beautiful or original plating of food. Even then, the design right would at most protect the creator from having some other chef, or food designer from having the design copied by another chef or food designer, not from having it captured and even published by a photographer, whether a professional press photographer or an amateur. The same principle of design right would apply to the dish itself: if you create a dish, you have a reasonable right for it not to be copied exactly by a competitor, but you don't have a right to prevent a food reviewer, or even a member of the public, writing "last night at X's restaurant, I ate a dish of venison that my taste buds deduce had been sauted in a light olive oil with chanterelles and shallots before being flambed in calvados and then topped with a light sprinking of grated truffles" (I'm making this up, I haven't considered whether it might be a good dish to make).

What is more important in our real-life context is that the chef has an enforceable right not to have someone steal his knowhow in order to compete with him. For example, if I lose my mind and go to work for Gordon Ramsey as a sous-chef, and systematically learn his recipes in order to open my own restaurant and make his dishes as if they were my own, he would have every right to sue me, and he'd probably make mincemeat of me in the courts. However, if I worked for him, learned from him, and then went off to my own restaurant in which I market myself as a former Ramsey underling whose original works have been influenced by Ramsey's genius, he would be stupid to even attempt to sue me. Besides, imitation is the sincerest form of flattery.

There is also what is called an issue of public interest. If you are the first chef in the world, say, to discover to make a perfectly edible dish out of pebbles from a stream, most courts would apply the public interest argument and say that you can't prevent other chefs, or cooks at home, from finding their own way to cook pebbles, especially if there's a shortage of other raw materials. You certainly could apply for a patent for the proprietary process of softening and cooking them, and might well get it granted, but the patent would probably only cover your process and you could probably only demand royalties from other people who were doing it commercially. Basically, intellectual property rights aren't open-ended: you can patent a particular gene sequence, but that doesn't cover other gene sequences. You can have your original creation "to be or not to be ..." covered by copyright, but you can't prevent other people from quoting you; and you can't use copyright to prevent parody, such as "to pee or not to pee ..."

Ownership of copyright to  photographs taken, with or without permission, stay with the photographer under copyright law.

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That is not quite right. Although the photograph is the photographers copyright, if it includes substantially a copyrighted work or a design right work then it may be a derivative work (like a translation), and cannot be published without the original IPR owners permission. This occurs, for example, where a picture includes most of an advertising hoarding; in principle (an in practice for most TV and film work) you must get release from the advertiser.

I think that (at least in the UK) a plating arrangement would be covered by design right , unless the chef has applied for a Registered Design. If he has served more than 50 similar plates then it no longer counts as artisitc copyright (70+ years from death of the author) but industrial copyright (25 years from first publication)

Unless the customer has comissioned the work explicitly, the IPR remains with the chef, even though the customer has purchased the work, just as purchasing a CD or a book does not transfer the copyright

Maybe we should sell edible tags with the copyright © or design right (DR) logo for chefs to add to the food at the pass...

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