Some Chefs Still Insisting That Photographing Meals Steals Some Of Their Intellectual Property
from the just-a-wafer-thin-mint-sir dept
A few years ago we noted how there appeared to be a growing belief among some chefs that taking photographs of their dishes when you're in their restaurants is somehow "taking away their intellectual property." We've discussed a few times about how restaurants are just one of many industries where a lack of copyright protection has actually helped innovation flourish (read: an industry that shows that there can be great creativity without saddling the entire apparatus down with copyright, such as magic or stand up comedy).While many chefs seem to simply think that foodies and patrons photographing their food is a sign of respect or just begrudgingly tolerate it, others seem to have succumbed to copyright maximalism disease, whereby one believes that you're allowed to "own" things you're clearly not entitled to. Despite the idea being rather groundless, it appears that it has recently caught on among a smattering of chefs overseas:
"Gilles Goujon, from the three-starred L'Auberge du vieux puits in the south of France, has stated in an interview with news website France TV that foodtography is not only poor etiquette but he believes that when his dishes appear online, it takes away "a little bit of my intellectual property". Another chef in La Madelaine-sous-Montreuil has also included a "no camera" policy on his menus for this reason."While kicking people out of your restaurant is certainly your prerogative (and there certainly are people who are so in love with their smartphone that dining with them is annoying), why would you want to punish paying customers for appreciating your work? The end result would likely hurt your brand long before it managed to protect any personal acumen in your stated craft. Other chefs lament that not only are you stealing their IP, you're doing a really crap job of it because you're probably a bad photographer:
"US chef RJ Cooper, from Rogue 24 in Washington DC, has made similar claims...: "They publish food photos without your consent, which is taking intellectual property away from the restaurant. And also, generally, the photographs are terrible. "If you're publishing something in a public forum without written consent, that's problematic."That seems about as logical to me as the superstition that taking photographs of an individual leeches away a tiny part of their soul. Just because I take a photo of your meal, does that mean I'm somehow magically also stealing what is probably a complicated recipe? So what you're saying essentially is you "own" the IP of laying several strips of beef just so and dribbling the entire concoction with sauce in a particular way? It's quite a bit of nonsense, and fortunately for patrons, no lawyer appears to have been interested in testing this theory, even if it's starting to seem like only a matter of time before one does.
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: copyright, food, gilles goujon, photography
Reader Comments
Subscribe: RSS
View by: Time | Thread
For me, this can be applied also to the written word or to a drawing, since you're arranging text or visual art in certain layers or in a certain way, just like with a recipe. If you discount a recipe as being copyrightable due to the above reason, then you have to discount copyright in the arts, in the interest of consistency.
[ link to this | view in chronology ]
Re:
The US Copyright Office says so here:
http://www.copyright.gov/fls/fl122.html
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re: Re:
If you photograph your living room and a book cover happens to be in it, for example, you're cool. If you photograph the book cover all by itself, you're not.
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
Re: Re: Re:
For example when you buy software, the law gives you certain rights, but you might then choose to sign a license that gives some of those rights back to the software publisher. That's another thing. Copyright, being a law, is automatic, whereas licenses are always voluntary.
[ link to this | view in chronology ]
Re: Re:
According to these people, if someone else takes that photo, they're also violating the copyright on how you made and presented that cup of tea. Plus the copyright of whoever designed the cup and the table, presumably.
[ link to this | view in chronology ]
Re: Re: Re:
That arrangement wouldn’t' have any inherent copyright so taking the photo in that case would be fine. The photo would receive copyright, not very strong copyright though, since there's only so many ways to arrange mass produced items on a table. Regarding the photo of the book, it all depends on its transformativeness, as others have already said.
[ link to this | view in chronology ]
Re: Re: Re: Re:
[ link to this | view in chronology ]
Re:
Furthermore a meal served at a restaurant by a paying (whether monetarily or other consideration) patron would also be a "work for hire" therefore the IP if any (which their isn't - though there might be a design trademark at a stretch) is actually owned by the client eating said work, which allows them not only to photograph the work and use it also for commercial purposes it also means they can smear it over their face and photograph that as an artwork too.
The only thing the restauranteer can do about it is ask them to remove themselves from the premises, though this could open the restaurant up to tortuous actions on other fronts due to the contract of sale not being fulfilled. Remember they offered to purchase meal and it was accepted, they received meal.. legally photographed it and then were made to leave without consuming their consideration part of the contract. Not to mention things like NEID or IIED that could be problematic.
[ link to this | view in chronology ]
NOT work for hire.
You use a lot of confident sounding lingo, but you don't actually know what you are talking about. Work for hire is generally about employees **of your own**. "Work for hire" actually has specific meaning under copyright law, and isn't just based on what the public would thin, the words mean. Buying and individually made product from a business doesn't give you copyright in that product.
[ link to this | view in chronology ]
Re: NOT work for hire.
AS for 'work for hire' generally being about employees.. some Tattoo artists would disagree with you now. Also every single consultant that is NOT an employee is now grinning from ear to ear since you have allowed them to own there creative expression in whatever work they were paid to accomplish.
[ link to this | view in chronology ]
Re: NOT work for hire.
Actually, you are the one who doesn't know what you're talking about, and we can ALL see that.
[ link to this | view in chronology ]
Re: Re:
There's a hair here to split.
The procedure a recipe describes is not copyrightable. However, the specific description of the procedure can be.
[ link to this | view in chronology ]
How About This Solution (to: Rikuo, #1).
The story goes that a poor student sat down outside a restaurant, and, while eating his mean little bowl of rice or millet, inhaled the smell of the rich dishes being consumed within. The restaurant owner sued the student for stealing the aroma. When the case came to trial, the judge ruled that the restaurant owner was entitled to be paid-- by hearing the sound of coins clinking together. The judge not only had good sense, but a definite sense of humor as well.
That said, a photograph of a dish is rather less than the aroma. The only compensation that the restaurateurs involved are entitled to is the sound of coins clinking.
[ link to this | view in chronology ]
Re: How About This Solution (to: Rikuo, #1).
In this case, and following the lesson from that tale, if the chefs are claiming that pictures are 'stealing their IP', I'd say a suitable recompense would be for the ones taking the photos to 'pay' with a picture of coins/bills. Photo for photo as it were.
[ link to this | view in chronology ]
Re: Re: How About This Solution (to: Rikuo, #1).
William Penn: I desire you would let me know by what Law it is you prosecute me and upon what Law you ground my Indictment.
Recorder (Judge): Upon the Common Law.
Penn: Where is the Common Law?
Recorder: You must not think I am able to run up so many Years, and over so many adjudged Cases, which we call Common Law, to answer your Curiosity. [You are an impertinent Fellow. Will you teach the Court what Law is? It's Lex Non Scripta, that which many have studied thirty or forty Years to know, and would you have me to tell you in a Moment?]
Penn: This Answer I am sure is very short of my Question, for if it be Common, it should not be so hard to produce.
(Reproduced in Ramsay Clark and Harry Kalvin, _Contempt: Transcript of the Contempt Citations, Sentences, and Responses of the Chicago Conspiracy 10_, Swallow Books, 1970, p. 248)
Penn was convicted, of course, and Europe heard no more of "Quaker Jurisprudence." However, Japan took a different view.
[ link to this | view in chronology ]
Re:
Does this now mean that Ford can come after me for Copyright infringement because I took a picture of a car that I bought from them?
What about if I walked into their shop to buy a car, and took a pic standing beside a car that I haven't even purchased yet? Would they slap a copyright infringement suit on me?
In fact, if I went into a new car dealership, took a pic of myself beside the car, then went home and starting building my car from scratch, it's STILL not copyright infringement.
So. Where does the chef really stand?
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re:
You can't get the recipe from a god damn picture of food unless your meal is of the utmost simplicity!
How would I know what the sauce is made out of?
What the proper proportions are?
How long was it cooked?
What's the god damn bread made out of?!
DO YOU EVEN COOK?!
[ link to this | view in chronology ]
A question needs asking...
Does the photo somehow take away the taste of the meal from other diners? Does taking the picture somehow make it harder for the chef to remember just how to cook that meal? Does photographing the food somehow make if more difficult for the chef to cook that particular meal in the future?
Honestly, I'd really love to know how taking a gorram photo somehow devalues their 'intellectual property'(and how exactly a meal can be considered 'intellectual property' in the first place, given I'm fairly sure you can't copyright a plate of food).
[ link to this | view in chronology ]
Re: A question needs asking...
But yes, food that is eaten or decays does not likely qualify as a "fixed medium," so likely, only the customer who is photographing the food is actually creating a work in a fixed medium.
[ link to this | view in chronology ]
Re: Re: A question needs asking...
[ link to this | view in chronology ]
Re: A question needs asking...
Doesn't mean they're right or that it would hold up in court, of course, but I think if we want to either understand the claims here or effectively argue against them we need to do it from that angle.
[ link to this | view in chronology ]
Re: Re: A question needs asking...
[ link to this | view in chronology ]
If chefs think food photos suck then fix the lighting!
[ link to this | view in chronology ]
a 3 star french chef?
[ link to this | view in chronology ]
[ link to this | view in chronology ]
what a minute......
You order your food, the chef makes it to YOUR specifications,(no onions, extra pickles, medium rare, whatever) right??
As such don't YOU own the copyrights then??
[ link to this | view in chronology ]
Re: what a minute......
[ link to this | view in chronology ]
Re: Re: what a minute......
[ link to this | view in chronology ]
Why should a carrot cake be treated any differently than a rock sculpture on copyright issues -- or are some types of art less worthy of copyright protection than others?
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re: Re:
http://photosecrets.com/copyright-artwork-movies
[ link to this | view in chronology ]
Re: Re: Re:
But the essential problem is that fair use is a defense in court. It doesn't stop you from being sued or from incurring the expense of defending yourself in court, no matter how certain your ultimate victory may be.
Much like companies license bogus patents because it's cheaper than actually seeking justice, studios generally find that it's cheaper to get permission for everything even when that permission is not legally necessary.
[ link to this | view in chronology ]
Re: Re: Re: Re:
And this is what drives the permission culture, and the entitlement attitude. Once we start asking for permission when we don't need to, it's expected for everything. It's like giving a bully your lunch money "just this once" so he won't beat you up. Next thing you know you've gone without lunch for the whole school year. Just like we as a culture have gone without unknowable amounts of creative work for fear of being hauled into court.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re:
[ link to this | view in chronology ]
Re:
Why this rule. I think it's because for these items, even thought the chef or designer might think them unique, there's only so many ways to arrange food on a plate, it's been done nearly identically at some point in history. Also, as a practical matter, the market for paintings is based on artistic aspects alone, whereas food and clothing still have value outside of their artistic aspects, so the general public doesn't feel it's worth placing copyright restrictions on these items.
[ link to this | view in chronology ]
Australia must be Opposite Land
To enter that competition you have to
1. SNAP - Take a photo of your dish at a local café or restaurant
2. CRITIQUE - Write a short review
3. UPLOAD - and maybe win the prize
[ http://au.tv.yahoo.com/my-kitchen-rules/be-the-judge/ ]
Shows that some countries understand the difference between petulant and idiotic restaurant owners who don't understand the basics of IP or Marketing and those that do since there have been no problems with the competition and restaurant owners LOVE the idea that they are getting exposure and some of the photos are absolutely brilliant. Don't look if you are hungry ;)
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Soul-stealing
[ link to this | view in chronology ]
Re: Soul-stealing
[ link to this | view in chronology ]
By definition, a soul would be supernatural.
[ link to this | view in chronology ]
Re: By definition, a soul would be supernatural.
[ link to this | view in chronology ]
Re: By definition, a soul would be supernatural.
Given that the laws of science apply by definition to all reality (the whole purpose of science being to find such laws), if something does not obey the laws of science, by definition it cannot be real. QED.
[ link to this | view in chronology ]
Re: Re: By definition, a soul would be supernatural.
No, "supernatural" lies above the notion of "natural" and "artificial".
"if something does not obey the laws of science, by definition it cannot be real."
I disagree with this. The "laws of science" aren't some fixed set of rules. Scientists find things that break them all the time, requiring the laws to be revised.
The thing about things supernatural (this includes notions like god, of course) is that they cannot be judged by science at all, since they can't be tested experimentally.* Therefore scientifically speaking, science can say neither that they are or are not real.
*There have been many, many "supernatural" things that have become testable and therefore came within the realm of science. Some of those things were disproven and are now laughed at, and some of those things were proven, incorporated into the scientific body of knowledge, and a lot was learned form them. Sometimes (alchemy is the great example), it was a little of each and resulted in something entirely new (chemistry).
All that said, there's a lot of things people believe in based on exactly no physical evidence whatsoever. While lack of evidence is not proof of nonexistence, it is a really strong hint in that direction. Things that exist tend to leave some kind of repeatable physical effect.
[ link to this | view in chronology ]
Re: By definition, a soul would be supernatural.
But it is a man-made concept, therefore it must be a subset of “artificial”.
I never said they were.
Aren’t you contradicting yourself here? First you said science is not some fixed set of rules. Yet here you are implying that science is fixed in its inability to address certain areas of inquiry.
If something exists, it can be investigated by science. Therefore, by definition, if something cannot be investigated by science, then it does not exist. QED.
[ link to this | view in chronology ]
Photo Equals Advertising
[ link to this | view in chronology ]
Entitlement disease
Entitlement thinking should be classified as a mental disorder.
[ link to this | view in chronology ]
My dog takes better pictures!
[ link to this | view in chronology ]
About restaurants and chefs
That said, the restaurant business was in the "just-in-time" custom manufacturing business long before (was it Demming?) it was 'identified' in Japan in the '60's. However, as pointed out above, some chefs don't allow their customers to make requests about their food. For chefs', these are very few. Big corporations have issues with this as well. One used to be able to get a medium rare hamburger, even at McDonald’s. You cannot any more, because of tainted food, corporations take to cooking everything to death instead of fixing the food supply chain.
[ link to this | view in chronology ]
Re: About restaurants and chefs
So far as the taking of pictures, it really depends upon the type of restaurant. Chucky Cheese, I am sure will encourage the taking of pictures. A Michelen 3 Star (the top rating from them BTW) might consider such activity an annoyance to other guests.
I see restaurant choices happening like this. One decides what they want to eat and roughly what price they want to pay for that meal. Next there is another, probably subconscious, decision being considered and that has to do with ambiance, atmosphere, entertainment, style of service, which are the considerations about a restaurant that go beyond food.
So, if one has a large restaurant where they pump out hundreds of meals per service, vs a small intimate place that might feed a few dozen on a given day, the personal involvement of the Chef is more highly likely. Here is were the daily menu and a desire to do things different and better every time exist. Here is where the ego, and insecurity may pop up.
I know chefs who could care less about pictures. I know chefs who will give you their recipes and detailed instruction on how to make the dish. I do not personally know any chef's who think their IP is being stolen by cameras. In fact, during our culinary salons, the general public is invited in, with their cameras, to look at and ooh and aah over the works displayed, some of which took months to prepare (I am thinking of certain pastry pieces made almost entirely of sugar in different forms). No complaints about IP.
Personally, I subscribe to the "I give away everything I know, for free" school of thought, and have found it to be a successful strategy for both customer and employee relations, but then I never competed with Michelen 3 Star, or like restaurants for the most part. I do know chefs who do, and they, like me, give the knowledge away.
So, in the end I think it comes down to those two things, ego and insecurity. Ego tells one, I made it, it is mine, even though I just sold it for consumption. Insecurity tells one, oh oh, someone might copy this presentation (not considering that the picture will not tell the viewer either the ingredient list or the method of preparation). Tis a foolish position, methinks.
[ link to this | view in chronology ]
Re: About restaurants and chefs
If you sell generic stuff that's easy to replicate then you are already in a somewhat dire position. It doesn't matter if you give your recipes away or allow patrons to photograph the food.
[ link to this | view in chronology ]
Re: Re: About restaurants and chefs
[ link to this | view in chronology ]
Re: About restaurants and chefs
Actually, you can easily get a medium rare (or rare) burger in my part of the country. Not at McDonald's, of course, but every non-chain burger place I've been to will cook it as much or as little as you like.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
You own that meal.
[ link to this | view in chronology ]
Those with a problem have zero intelligence.
Ignorance shouldn't be rewarded with anything but ridicule.
[ link to this | view in chronology ]
Good reasons/bad reasons
That's the good reason to prohibit it. To prohibit it based on some half-baked (see what I did there?) notion of IP rights is a very bad reason.
[ link to this | view in chronology ]
Re: Good reasons/bad reasons
Coat and tie required?
Snooty and discriminating are so tasty together.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
Ego
Or is there a bigger issue here: how many of these complaining chefs give a good value for the money? Are they worried that people will take photos of their creations and complain that the portion is too small for the price? Sure, "gourmands" may not mind the portion/ price ratio, but what about everyone who sees the photo on Facebook or Instagram?
[ link to this | view in chronology ]
Re: Ego
So far as portions go, we tend to eat way too much, and the restaurant industry as a whole has a large contributory part in that. The small portions ala Nouvelle Cuisine from the late 70's were and are part of a trend against that, that has largely failed except in the high end market. If you go out to eat at that level, you expect that portion. If you go out to eat just to get full, check out your local buffet, and it is likely that that high end market is not on your radar, nor are you on theirs.
[ link to this | view in chronology ]
Re: Ego
What is "good value" depends on what kind of restaurant you're talking about. The value you get from a high-end restaurant is way beyond the food. It's the service, the pampering, the atmosphere, the entire experience. At that price point, what you're getting is theatre. If it's great theatre, it's a good value even with small portion sizes.
You you would be upset that you weren't stuffed after laying out a couple hundred bucks for a meal, then what you want isn't theatre, it's a buffet.
[ link to this | view in chronology ]
Re: Ego
I don't think that's it. In fact, in terms of profit margin, cheaper chain restaurants are earning much more per the amount they spend on food and staff. How do you think they're able to expand so much? Meanwhile, high-end restaurants usually struggle to stay in business. The ingredients are simply higher quality and more expensive so they're not able to use as high of a markup.
[ link to this | view in chronology ]
Re: Re: Ego
The high end restaurants understand that gross margin is what goes to the bottom line, and care less about that cost of goods sold %. After all, one takes GM to the bank, not percentages. These operations get in trouble for a variety of reasons, including under-capitalization, misreading a particular market, not understanding the difference between cash flow and profit, etc.
Interestingly, I have found that retail folks understand this much better than restaurant folks. The chain restaurant operations teach "food cost, food cost, food cost", whereas retail teaches "gross margin, gross margin, gross margin". I did not keep track numerically, but several thousand interviews asking about this, sinks in.
[ link to this | view in chronology ]
Re: Re: Re: Ego
[ link to this | view in chronology ]
At least I can take photos of it on my own white plate at home, without interference from "the owner" ...
...oh wait. I bought it. I'm the owner or, uh, did I just license my food and have to give it back?
...from doggie bag to puke bag?
[ link to this | view in chronology ]
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
I've always understood that, should you be escorted out of a restaurant before you're finished, you're under no obligation to pay the bill. A EULA could modify that, if it's enforceable.
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
Re: Re: Re:
[ link to this | view in chronology ]
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Considering how tasteless nouvelle cuisine is
[ link to this | view in chronology ]
It stole my sole.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
[ link to this | view in chronology ]
See http://www.gnu.org/philosophy/not-ipr.html.
[ link to this | view in chronology ]
Intellectual Property
[ link to this | view in chronology ]
Re
[ link to this | view in chronology ]