Is Posting Restaurant Pics Actionable

[Andy Lynes]

As a diner, I don't want to pay top dollar to find myself in the middle of a tourist attraction with people photographing their food when they should be eating it and talking to their companions (although obviously not at the same time). Its bad manners, second only to texting at the table.

If I were a top flight chef, I wouldn't want a bunch of out of focus, badly lit pictures taken with a camera with a steamed up lens circulating on the internet that makes my food look like crap (something I have been guilty of myself in the past - just take a look at some of my snaps on ImageGullet - although never in a haute cuisine restaurant).

I have long thought that chefs who are targets for this sort of behavior should compile a regularly updated DVD-ROM of images of their menu and present it on request for those diners that find their flavour memories and a copy of the menu an inadequate souvenir.

[jackal10]

I-am-not-a-lawyer but I believe "fair use" only applies text, not to pictures or to three dimensional objects, such as a plating.

Copyright only stops copying, not re-invention. Writing a critique is not copying, nor is creating your own version in your own restaurant, unless it can be shown that you took away the plate (or a picture of the plate) and copied directly from the original.

[docsconz]

As a diner, I don't want to pay top dollar to find myself in the middle of a tourist attraction with people photographing their food when they should be eating it and talking to their companions (although obviously not at the same time). Its bad manners, second only to texting at the table.

If I were a top flight chef, I wouldn't want a bunch of out of focus, badly lit pictures taken with a camera with a steamed up lens circulating on the internet that makes my food look like crap (something I have been guilty of myself in the past - just take a look at some of my snaps on ImageGullet - although never in a haute cuisine restaurant). 

I have long thought that chefs who are targets for this sort of behavior should compile a regularly updated DVD-ROM of images of their menu and present it on request for those diners that find their flavour memories and a copy of the menu an inadequate souvenir.

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I do not believe that the propriety of a customer photographing food or anything else in a restaurant is really the issue here. That has been debated elsewhere ad nauseum. The question is not even whether a restaurant has the right to ban photography from its premises. The quality of the photos are I believe irrelevant. The crux of this matter is clearly how the situation was handled by the restaurant and particularly the chef. We have only heard one side of the story, but given the apparent history of the chef it is a compelling one and inexcusable.

[Nicolai]

Legal advise stated the following.

1- The establishment is entitled and is within it's rights to ban the possession and/or use of photographic equipment on the premises.

2- The ban on the possession and/or use of photographic equipment has to be clearly and legibly displayed at the entrance of the establishment and any relevant printed/AV material.

However, what happens if a person does manage to take pictures on the premises, the establishment can ask for the surrender of all photographic evidence provided proof of the following can be established in a court of law:

- Malicious use of the material in it's current or altered form. (not restricted to moral/personal/public domain)

- Financial gain from the use of material.

Now how the establishment would prove malicious use or financial gain by the culprit can only be made with few hundred thousand dollars legal cost.

In other words and in this particular case, the restaurant has to show that the food pictures published or intented to be published on the web have or could negatively affect the restaurant reputation and financial position.

There would be no point for any establishment to run such road as it would be extremely difficult to prove intent and effect. Should they win the case, they would still loose the business and the only gratification is putting the culprit behind bars for incapacity of settling the damages and legal costs.

Summary: If there is no money in it then there is no point to it.

[Andy Lynes]

The crux of this matter is clearly how the situation was handled by the restaurant and particularly the chef.

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Which should be left to the two interested parties to sort out. The internet is at its worst when it speculates about what might have or might not have happened, what people should have or should not have done in a given situation that only the people involved have all the facts about.

[docsconz]

The crux of this matter is clearly how the situation was handled by the restaurant and particularly the chef.

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Which should be left to the two interested parties to sort out. The internet is at its worst when it speculates about what might have or might not have happened, what people should have or should not have done in a given situation that only the people involved have all the facts about.

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What clearly did happen and makes this discussion broadly relevant was the cease and desist letter.

The beauty of the internet is that the chef has the ability to respond and defend herself should she so choose.

[monavano]

How uncanny that I read the Washington Post's Wednesday Food section today to find this article on "Recipes and Ethics, Can a Recipe Be Stolen?"

http://www.washingtonpost.com/wp-dyn/conte...6010300316.html

[Pontormo]

Interesting. I actually wrote a letter to the editor complaining that the recipe for a soup that they published to promote a new book by Jack Bishop essentially was a knock-off of a recipe by Deborah Madison. Minor changes made were to simplify the procedures and change it just a litte bit, the changes seemingly inspired by the recipe Madison offers on the facing page of her book! It would have been decent to acknowledge debt, which many cookbook authors do.

I wonder if the Post stole the idea of the story from me?

[Holly Moore]

Folk singer Pete Seeger when told that someone had stolen a melody from him replied, "Hell, he just stole from me, I steal from everyone."

So it goes with recipes. Like folk music, 99.9% of the receipes have evolved from the past. Maybe 100%

Edited January 4, 2006 by Holly Moore (log)

[Pontormo]

So true and touche. The notion of plagiarism, after all, is fairly modern. We are getting off topic here, and I am contributing to that. Enough.

[menton1]

Many Television Stations and other media use hidden cameras to do exposé news reports all the time. These media outlets have a giant staff of attorneys. How is it OK for them to do that, and not OK for someone to take photos of food and post on a personal blog?

N.B. In Paris, in front of artisan crafts and design shops, if you try to take photos of their window displays, they will rush out and ask that you not take photos. But that's a request, I suppose to protect their designs. (?)

[Bux]

. . . .

The beauty of the internet is that the chef has the ability to respond and defend herself should she so choose.

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Actually, one of the evils of the internet is that such a statement can be assumed to offer fairness or that the ability to defend oneself in a public forum should be considered a reasonable obligation.

[rich]

Many Television Stations and other media use hidden cameras to do exposé news reports all the time.  These media outlets have a giant staff of attorneys.  How is it OK for them to do that, and not OK for someone to take photos of food and post on a personal blog?

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Journalists have the first amendment to protect them. A personal blog is not covered as of yet, but expect an eventual Supreme Court case.

However, even journalists must abide by a posted "no photography" sign in a busines setting. However, as was mentioned in a earlier post, if they are able to sneak a camera in and publish the photos, they should be able to prove their points. If not lawsuits may follow.

[lcdm]

How uncanny that I read the Washington Post's Wednesday Food section today to find this article on "Recipes and Ethics, Can a Recipe Be Stolen?"

http://www.washingtonpost.com/wp-dyn/conte...6010300316.html

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Did you notice that the sidebar mentions egullet and fifi's recipe for a shrimp dish?

[menton1]

Journalists have the first amendment to protect them. A personal blog is not covered as of yet, but expect an eventual Supreme Court case

The First Amendment covers ANY person, there is no requirement to be a journalist!! Very doubtful that this is anything the Supreme Court would get involved with. Besides, a blogger is a type of journalist, anyway...

[Patrick S]

Many Television Stations and other media use hidden cameras to do exposé news reports all the time.  These media outlets have a giant staff of attorneys.  How is it OK for them to do that, and not OK for someone to take photos of food and post on a personal blog?

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Journalists have the first amendment to protect them. A personal blog is not covered as of yet, but expect an eventual Supreme Court case.

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Bloggers and journalists have different first amendment rights? I must have slept throught that development.

[rich]

Journalists have the first amendment to protect them. A personal blog is not covered as of yet, but expect an eventual Supreme Court case

The First Amendment covers ANY person, there is no requirement to be a journalist!! Very doubtful that this is anything the Supreme Court would get involved with. Besides, a blogger is a type of journalist, anyway...

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The courts have traditionally given journalists more latitude than individuals and have recognized, and in some cases, specifically defined the unique privledges of the fourth estate.

For instance, cameras in the court room (when allowed) are limited to credentialed journalists. It has never been taken to mean or interpreted that members of the general public can bring in cameras.

As far a blogger being a "type of journalist," your language proves the point. Right now it's a gray area and I believe it will eventually be a Supreme Court case.

[philadining]

Bloggers and journalists have different first amendment rights? I must have slept throught that development.

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The Apple Computer v. Think Secret case has largely been interpreted to mean that Bloggers do not enjoy the same rights as big J "journalists." But as Rich said, I suspect the issue is far from settled...

[rich]

Many Bloggers and journalists have different first amendment rights? I must have slept throught that development.

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As far as freedom of the press issues, they do. Whether one agrees or not, bloggers have not been defined as journalists - yet.

There have been multiple articles written about the subject to date. Some highly respected J Schools differ on whether a blogger is or isn't a journalist. It will be a hot-button issue in the near future, especially as it gets into Homeland Security concerns.

This is way off the subject for photos in restaurants, so if you want to discuss this very important issue further, please PM me.

Thanks.

Edited January 4, 2006 by Holly Moore (log)

[kgaddis]

As a chef, I particularly despise cameras inside a dining room. However, the dinner belongs to you, you bought and paid for it. I think this chef may be concerned about her "presentation" ideas being used in other restaurants. If she is so great maybe she should publish some books so the whole world can see!

[Patrick S]

As far as freedom of the press issues, they do. Whether one agrees or not, bloggers have not been defined as journalists - yet.

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Right, but you're begging the question aren't you? The first amendment does not apply only to journalists, it applies to all US citizens. I'm not a legal expert, so if you could point me to some case law showing that FA applies unequally to different groups of US citizens, I'll promptly eat crow. I was under the impression that it applies to everyone equally.

Edited January 4, 2006 by Patrick S (log)

[rich]

As far as freedom of the press issues, they do. Whether one agrees or not, bloggers have not been defined as journalists - yet.

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Right, but you're begging the question aren't you? The first amendment does not apply only to journalists, it applies to all US citizens. I'm not a legal expert, so if you could point me to some case law showing that FA applies unequally to different groups of US citizens, I'll promptly eat crow. I was under the impression that it applies to everyone equally.

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We're going to deleted because this has nothing to do with the thread, but the first amendment has different applications for different groups. It covers freedom of religion. But it doesn't mean anyone can start a one-person religion and claim such a religion should enjoy some of the same constitutional guarantees afforded to "established" religions - such as priest/penitent confidentiality.

Same as freedom of the press. The journalist must work for a "recognized" form of the media to enjoy certain privileges ie cameras in courtroom, revelation of sources - all of the "slippery slope" stuff.

Bottom line, yes virtually every amendment affords certain rights to certain groups: women's sufferage, civil and voting rights, duly elected office holders etc, etc. We are a country of individual equals, but some professions enjoy privileges others do not. And the list of professions is long - doctors, clergy, lawyers, journalists, elected officials etc. But of course with those privileges comes additional responsibilities.

To keep this somewhat on topic. A restaurant has the right to refuse anyone from taking photos, but they do not have the right to seize such photos (if taken) unless they can prove harm, slander, liable, copyright infringement etc. As far as posting such pictures on a public forum or a personnal internet blog - stay tuned, that determination will be made in the near future.

[bilrus]

As far as posting such pictures on a public forum or a personnal internet blog - stay tuned, that determination will be made in the near future.

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Greenwood v DCFoodie

[Rachel Perlow]

Many Television Stations and other media use hidden cameras to do exposé news reports all the time.  These media outlets have a giant staff of attorneys.  How is it OK for them to do that, and not OK for someone to take photos of food and post on a personal blog?

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That's it exactly, they have attorneys on staff. For a private individual without a lot of money to hire an attorney, receiving a C&D letter is enough of a deterent to have the individual comply rather than hiring an advocate to assert their rights. Besides the whole 1st amendment thing, professional journalists working for big media outlets have legal departments to check on legalities with and defend them if they are within their rights.

[menton1]

Sounds to me like a judge might just laugh at this type of lawsuit and throw the thing out right away. But, interestingly, the legal pros that frequent this site have been mysteriously silent on this topic...