Is Posting Restaurant Pics Actionable

[jackal10]

Another colleague remarks

I suppose a graphic work of art can be created with food as with any other material, but this is sufficiently unlikely to apply to a plate served in a restaurant that a copyright notice would be needed to put the photographer on notice that copyright was claimed; without the notice, no damages could be recovered because of the defence of innocent infringement. An injunction to restrain future breaches is in theory available, however.

Bizarre!

[Tapenade]

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.

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The definition of a journalist is someone who works as one. It is not a profession that requires professional qualifications or recognition in the same way as a lawyer or accountant has to pass exams and be acknowledged by a professional association. Actually, it's rather like being a chef: you're a chef if you make food that's good enough to attract people to your restaurant, not because someone else says so; and you're a journalist if your writing (or broadcasting) is good enough to get you published or broadcast. The White House press office, or whoever, can choose to grant or deny you a press pass based on who you're working for and even how long you've been working for them; but a court would judge whether or not you're entitled to keep your sources confidential according to the factual issues of whether you really work as a journalist or not. I once had my press card cancelled by the Israel Government Press Office, because of completely improper and illegal pressure put on them by my previous employers, AP, but I carried on working as a journalist, and if I had been forced to claim the privileges of a journalist in court, the court would have backed me completely.

A restaurant doesn't have the right to seize your photographs in any circumstances, and if it tries to do so by force, then you're entitled to file a criminal complaint for assault and battery, or worse, and to sue for damages. A court can seize your photographs; the police could probably do so if they are considered evidence of a crime; and national security authorities could do so if they were evidence of some national security threat (of course, since the Patriot Act, all these conditions have been eased in favour of the authorities).

As for DC Foodie, I say again that he should have stood his ground against the attorney's threats, which were nothing more than intimidation, and published the photos on his log. If they were an accurate representation of the food he was served, there is absolutely nothing Carol G could have done about them. And I hope that her despicable behaviour makes clients go somewhere else, however good the branzino.

David

[My Confusing Horoscope]

Creative Chefs can turn to recent changes in the copyright law outlining what is covered by copyright:

Copyrightable works include the following categories:

1. Used to be literary works; now is appertizers

2. Used to be musical works, including any accompanying words; now is soups

3. Used to be dramatic works, including any accompanying music; now is salads

4. Used to be pantomimes and choreographic works; now is cheeses

5. Used to be pictorial, graphic, and sculptural works; now is entrees

6. Used to be motion pictures and other audiovisual works; now is desserts

7. Used to be sound recordings; now is wines

8. Used to be architectural works; now is other beverages

[divalasvegas]

Does anyone out there know if this whole, uh, oh Hell I don't what to call it, came up in today's live online chat with the Washington Post's Sietsema?

[bilrus]

Does anyone out there know if this whole, uh, oh Hell I don't what to call it, came up in today's live online chat with the Washington Post's Sietsema?

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Yep -

Washington, D.C.: Would you like to weigh in on this week's big foodie controversy? A blogger (dcfoodies) took photos of Carole Greenwood's food at Buck's. After dessert, she told him not to. The next day he was served with a cease-and-desist letter telling him he could be sued if he posted the pictures. He has not posted them, or his review, but he has posted the letter.

Curious to hear your thoughts (and I've tried to recount the incident in as neutral a tone as I can! I am not either of the parties involved.)

Tom Sietsema: I think the whole thing is pretty darn amusing.

The blogger is a nice young man who just wants to record a meal he's enjoyed. The chef is an exceptional cook known for her (how do I say it?) occasional odd encounters with customers.

Maybe the blogger shouldn't have been so obvious. Maybe the chef should have left him alone. Maybe this is a tempest in a teapot.

Maybe it's time for another question ...

I would have liked to get more reaction from him and the other readers.

Edited January 4, 2006 by bilrus (log)

[monavano]

Does anyone out there know if this whole, uh, oh Hell I don't what to call it, came up in today's live online chat with the Washington Post's Sietsema?

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Yes, it did. And he sidestepped it gracefully.

Archives:

http://www.washingtonpost.com/wp-dyn/conte...5122101104.html

[menton1]

Funny, I've never heard it said in theis country that "You can't say that because you are not a Journalist". You are mixing up journalistic privilege, such as, say, in Sports locker rooms only journalists are allowed, with Free speech.

A journalist has no more right to print surreptitiously obtained photos in his newspaper than does a non-journalist on his blog.

How about some legal eagles chinming in on this?

[LindaJ]

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

This is way off topic but technically a Polish grandmother is a babci. Maybe a Yiddish grandmother is a bubbe. My mom would look at you real funny if you called her a bubbe. To put this at least semi-on-topic with food, Babci is a fairly decent brand of frozen pierogis, but I like Millie's better.

[jgm]

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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Andy, I think you've hit the nail on the head in this post.

I think we have two issues working in tandem here: issues of rudeness and hospitality, and legal issues.

Several posts back, someone spoke of Chef Grant's extremely gracious response to this situation -- to have the pictures taken away from the dining area. But he still risks having pictures posted over which he has no control, and may be out of focus, taken in bad lighting, etc., and could lead to negative publicity about his restaurant. Not all of us have the photography skills of Lucy Vanel!

The (DC) chef's response sounds as if it's typical behavior for her. We had a thread not too long ago about eating at a restaurant in which the help is not treated well. If she doesn't treat the public well, I would assume she also doesn't treat her employees well, although that's not necessarily the case. I wouldn't want to eat at any restaurant where the employees may find excuses to take revenge out on their boss. And in a place like DC, as I understand it, there are many worthy alternatives.

[annecros]

I can't help but think of the correlation between the original intent of "Freedom of the Press" which was literally, if you had a printing press in the back room in a two horse town, you could pretty much print anything truthful and distribute it among the public as long as you are not infringing upon another person's rights. I can't think of a better example of those early days of journalism than the blogs we all know and love today

No legal background here. But my brother plays a lawyer in court.

I think the question will be:

Is a plate of food sold to another, with the intention that the purchasing party means to consume the plate of food and it is a one of a kind production for the person purchasing it, and it will go away with the consumption of said plate of food by the purchaser, worthy of copyright protection? Or does the purchaser now own the plate of food? Surely no human being would argue that every plate that leaves the kitchen is perfectly uniform.

I don't think the precedent will be set with a picture of a plate of food from a restaurant. I mean, copyrighting a plate of food, is nearly as silly as copyrighting some of the recipes I have seen. Is it derivative? Did the creator actually create something new and unique? Did the creator actually create the plate of food on their own, or "borrow" from other sources? Or is it something that someone else cooked a billion times before and fed to their families, and yeah that sauce could have fallen exactly like that on the plate a billion times before? etc. etc.

At the risk of being deleted, I think the precedent in the courts concerning if bloggers are "press" (which means to me the ability to publish) or not will be settled over much bigger issues than a plate of fish. Probably something sickeningly political, but an important precedent to address, nevertheless.

I have worked as a copy writer. I have the utmost respect for copyright law, and it is there for a reason.

I am rooting for the little guys on the blogs. But, I am prone to that.

MOO

[Rebel Rose]

God forbid the baby might have woken up and the parents snap a phonepic of little Noah having a bite of the corn pudding. Would she have confiscated the baby too?

[bleudauvergne]

Several posts back, someone spoke of Chef Grant's extremely gracious response to this situation -- to have the pictures taken away from the dining area.  But he still risks having pictures posted over which he has no control, and may be out of focus, taken in bad lighting, etc., and could lead to negative publicity about his restaurant.  Not all of us have the photography skills of Lucy Vanel!

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Hey! Ho! Wait a minute! I've taken about 54,876 bad photos in my day!

About the restaurant thing, I'm sure this will be a repeat of what someone else said, but for the most part, restaurants have wierd lighting and its dificult to get good photos, especially at night. For that reason I gave up taking photos in most restaurants and now only draw pictures.

But that's really not the issue here. It's that the chef personally came out and barked at this guy during their meal and then sent them a cease and desist letter through her attorney. Dude, if there's anything that will turn me off to a restaurant is getting attacked by a chef. It has never happened to me before, but I think if it did, it would possibly give me nightmares or at least make me lose a little sleep, especially if they threaten to sue me for expressing my love of food in a hobby like a full time blog -- My sympathies go out to the guy this happened to!

[menton1]

Funny, I've never heard it said in theis country that "You can't say that because you are not a Journalist".    You are mixing up journalistic privilege, such as, say, in Sports locker rooms only journalists are allowed, with Free speech. 

A journalist has no more right to print surreptitiously obtained photos in his newspaper than does a non-journalist on his blog. 

How about some legal eagles chinming in on this?

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My amateur legal opinion is that the Judge would throw this lawsuit right out of court. Something like a Paparazzi photo. The restaurant would have to prove "Harrassment". I hope the guy posts the photos!!

[jackal10]

Buying the plate of food no more transfers the copyright (that is you can copy it to make another plate look the same) anymore than buying a picture in a magazine, or a book or newspaper give you rights to copy it.

However where it gets more grey is that conventionally the copyright of plates of food is not enforced - for example you can reasonably go home and try and reproduce the dish, so unless the restaurant has given you clear notice that the food is a artistic work subject to copyright (if less than fifty similar plates are served) or a manufactured work (more than 50) and that those rights will be enforced, the presumption is that it is OK to copy it. Conventionally this notice is given by the copyright symbol © or the word copyright, the name of the creator and the year of publication. Thus Copyright 2006 Jack Lang, except that the rules of posting mean that I partially assign the copyright to the eGullet Society...

As I said earlier I can see an enterprising supply house printing edible copyright tags...

If you had commissioned the chef to design a new recipe for you to reproduce, that is work for hire and the copyright transfers to you.

Whether taking photos in a restaurant is allowable by the restaurant, desirable or disturbing to the other diners is another matter, nothing to do with copyright.

Edited January 5, 2006 by jackal10 (log)

[cdh]

Buying the plate of food no more transfers the copyright (that is you can copy it to make another plate look the same) anymore than buying a picture in a magazine, or a book or newspaper give you rights to copy it. [...] 

Whether taking photos in a restaurant is allowable by the restaurant, desirable or disturbing to the other diners is another matter, nothing to do with copyright.

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I don't know much about the UK Design copyrights you're relying upon for your analysis that a plate of food is copyrightable... but I can tell you that under US law food arrangements are in a much greyer area. The only possible category of copyrightable subject matter under which they might fall is sculptural, and that is a bit of a stretch. That means this would be a very expensive issue to litigate for the plaintiff, hence unlikely to happen. And since the Copyright Office does not, to my knowledge, have the capability to register plated food, then the likelihood of getting attorneys fees under the statute would be negligible since they're only available for pre-registered works when the violation occurs affter the registration. But then again, to sue at all, you must register the copyright, which will probably precipitate a prolonged administrative law battle over whether the Copyright Office has to register food arranged on a plate, and if so, then how.

As to copyright notices, again from a US perspective, the notice is no longer required in any circumstance, as the Berne Convention's ban on any formalities blocking the attachment of copyright has been interpreted as outlawing a notice requirement here.

So it is a pure question of law as to whether food on a plate is (or can ever be) copyrightable. And it has no firm answer.

And let me dig out my Blackstone's IP statute book and see what the law in the UK was in 1999 on this matter... or has it changed recently?

Edited January 5, 2006 by cdh (log)

[annecros]

Buying the plate of food no more transfers the copyright (that is you can copy it to make another plate look the same) anymore than buying a picture in a magazine, or a book or newspaper give you rights to copy it.

However where it gets more grey is that conventionally  the copyright of plates of food is not enforced - for example you can reasonably go home and try and reproduce the dish, so unless the restaurant has given you clear notice that the food is a artistic work subject to copyright (if less than fifty similar plates are served) or a manufactured work (more than 50) and that those rights will be enforced, the presumption is that it is OK to copy it. Conventionally this notice is given by the copyright symbol © or the word copyright, the name of the creator and the year of publication.  Thus Copyright 2006 Jack Lang, except that the rules of posting mean that I partially assign the copyright to the eGullet Society...

As I said earlier I can see an enterprising supply house printing edible copyright tags...

If you had commissioned the chef to design a new recipe for you to reproduce, that is work for hire and the copyright transfers to you.

Whether taking photos in a restaurant is allowable by the restaurant, desirable or disturbing to the other diners is another matter, nothing to do with copyright.

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Interesting. Isn't ordering a plate of fish for $19.95, based upon a menu description, intended to be used by you personally, in that you will consume it and it will no longer exist, a "work for hire"? And, are you required to consume and destroy it, just because you ordered and paid for it? Or can you take the food home and do jolly well what you please with it? Even "corrupt" the work by feeding it to the dog, or throwing it into the fridge, or just tossing it into the garbage. I think it is common knowledge and practice that the serving dishes are owned by the restaurant, but hair splittling arguments could be made over that as well, though. But once the food is unplated, is it no longer copyrighted, and can be photographed at will in it's styrofoam carton glory, back at home where you will not infringe upon another's artistic creation?

Or are you arguing that every plate that is purchased based upon that menu description is the same item, regardless of the condition of the raw ingredients, or the person who happens to be working that night? And that it is manufactured?

It is all too silly, and for wiser minds than mine to decide. Thank goodness. I would have probably told the chef to either allow photography in the restaurant or not, and just go home and shut up. That's why I am not in charge!

[cdh]

OK, have found my UK statute book, and found the Design Rights section.

I don't see how they could possibly be relevant to the act of taking a photograph of food arranged on a plate, insofar as the only exclusive rights granted to the holder of a design right are explicitly limited only to commercially reproducing the design by 1) making articles to that design, or 2) making a design document for the purpose of enabling such articles to be made. See UK Copyrights Designs and Patents Act of 1988, section 229.

I see no act in photographing food on a plate that violates those exclusive rights. To get a photographer for violation of 2), there would have to be evidence of commercial purpose, which is lacking in the set of facts we've seen. I also question whether a single photo could possibly be held to be a "design document" under the law.

[My Confusing Horoscope]

The food is not copyrightable at all. This is the actual list of copyrightable material given at the U.S. Copyright Office site

1. literary works

2. musical works, including any accompanying words

3. dramatic works, including any accompanying music

4. pantomimes and choreographic works

5. pictorial, graphic, and sculptural works

6. motion pictures and other audiovisual works

7. sound recordings

8. architectural works

Another category of works covered in U.S. copyright law, strangely enough is vessel hulls.

I was being facetious above with my joke, but here I am not. This list does NOT include appetizers, entrees, desserts, wines, etc. The chef's roasted pigeon or whatever has nothing to do with copyright law. A judge would first go through this list of 8 categories and throw out a claim of copyright infringement.

The contrary would be absurd if the chef's sweet potato cake were covered by copyright law for 70 years beyond the death of the baker, as the term of copyright is 70 years beyond the death of the creator (in the economic interest of the creator, her children, grandchildren, and great-grandchildren.... whoa, that's a lot of looking after the economic interests of the creator!)

[cdh]

As I'd said above, the only possibility for an argument that might make taking a photograph of food on a plate into copyright infringement is if food arrangement is a kind of sculpture. Last clause of #5.

It is a stretch. But given the copyright-happy nature of most courts, I'd not feel inane making the argument. After all, even when the statute is explicitly amended to undo a court's insane interpretation of copyright rights, courts find ways around the amendment to get right back to where they started. Google "117 and "mere licensee"" for the details.

edited to remove really ugly sentence and replace it with a prettier one.

Edited January 5, 2006 by cdh (log)

[docsconz]

Assuming that plated food is considereed as "sculpture" under copyright law, is taking a photo of that sculpture a violation of the copyright? I could see another identical food plating or sculpture being a violation but a photograph is a totally different medium.

[cdh]

Yes, Doc, it would be copyright infringement.

Making a "copy" has been extended to mean making a two-dimensional reproduction of a three-dimensional original and vice versa. And if that is not silly enough, it would also be a violation of the copyright holder's monopoly on making derivative works based on their work...

Edited January 5, 2006 by cdh (log)

[Holly Moore]

One thing I find satisfying is that while plated food is not given copyright protection, my photographs of plated food are.

[Rebel Rose]

But food is a physical product so there would also be trademark law. I had to look into that once.

You can't combine two older inventions to make a new one and trademark it. So, for instance, she couldn't combine mashed potatoes and gravy to create a new trademarkable combination. Or roast pork and corn pudding. And I don't think you can trademark vegetables. Maybe donuts . . .

But I guess if Greenwood really wants to defend her copyright, she could create some sort of gnocchi alphabet soup and spell out an original message on the plate. (Gee, I wonder what that would be . . .)

How did they get their hands on DC's camera, anyway? "Sir, step away from the camera, please. Just set the camera down, sir, and back away slowly."

[Pontormo]

Just a reminder: There isn't going to be a court appearance.

The judge will not be dismissing nothing or anything.

The chef did not get her hands on the camera. (If she did, she would not have taken the action that most of us are deploring here, the request for a letter from her lawyer.)

No one punched anybody.

The wife's dress did not go to the drycleaner's due to a huge blood stain.

DC Foodie did not agree not to post photos because there were two goons standing at his doorway when he and his family returned to their home that night.

Noah is fine and has not dyed his hair and is not living under an assumed name.

[My Confusing Horoscope]

This copyright discussion is getting to me.

The law assumes that I am so DISINCLINED to be creative, I need a STRONG economic incentive like copyright. Hence this absurd scenario applies:

I will not so much as write down my ARTISTIC, creative recipe for 3 minute eggs unless I have ironclad guarantees that not only will I be able to receive financial rewards from it, but also my next 3 generations of descendants, who apparently have no inclination to be creative, either, or even fend for themselves!

Where's the soapbox smilie when you need it?