Germany Says Taking Photos Of Food Infringes The Chef's Copyright

from the no-#foodporn-please,-we're-german dept

Mon, Aug 17th 2015 10:26am — Glyn Moody

Over the years, Techdirt has had a couple of stories about misguided chefs who think that people taking photos of their food are "stealing" something -- their culinary soul, perhaps. According to an article in the newspaper Die Welt, it seems that this is not just a matter of opinion in Germany, but established law (original in German):

In individual cases, shared pictures may be illegal. At worst, a copyright warning notice might come fluttering to the social media user. For carefully-arranged food in a famous restaurant, the cook is regarded as the creator of a work. Before it can be made public on Facebook & Co., permission must first be asked of the master chef.

Apparently, this situation goes back to a German court judgment from 2013, which widened copyright law to include the applied arts too. As a result, the threshold for copyrightability was lowered considerably, with the practical consequence that it was easier for chefs to sue those who posted photographs of their creations without permission. The Die Welt article notes that this ban can apply even to manifestly unartistic piles of food dumped unceremoniously on a plate if a restaurant owner puts up a notice refusing permission for photos to be taken of its food.

It's sad to see this kind of ownership mentality has been accepted by the German courts. As a Techdirt article from 2010 explained, there's plenty of evidence that it is precisely the lack of copyright in food that has led to continuing innovation -- just as it has in other fields that manage to survive without this particular intellectual monopoly, notably in fashion.

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Filed Under: chefs, copyright, food, foodporn, germany, infringement, photographs

71 Comments

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Anonymous Anonymous Coward, 17 Aug 2015 @ 10:32am

Sounds like...
...insecurity to me.

I would think the more secure would consider it free advertising.
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Anonymous Coward, 17 Aug 2015 @ 10:36am

What about the food after the body has processed and eliminated it? Is that copyrighted?
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Anonymous Coward, 17 Aug 2015 @ 10:41am

Given that the plate in question wouldn't exist without the customer ordering and paying for such food, it stands to reason that the resulting plate could be considered a work-for-hire, in which case the copyright would be transferred to the customer, and they can take pictures all they want.
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Anonymous Coward, 17 Aug 2015 @ 10:42am

Can't believe this needs to be said ...
- A photograph is not a copy.
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DannyB (profile), 17 Aug 2015 @ 10:43am

We must stop copycats
Imagine if a famous chef's food could be cheaply duplicated and sold at low prices by copycats.

* Shaving cream looks similar to whipped cream.
* Wax fruits and vegetables can look better than the real thing.
* That steaming hot sizzling look can be replicated with bits of dry ice.
* And many other techniques used to create the beautiful food pictured on the overhead menus at your local McFastFood place.

If a cheap copycat made food using techniques like this to replicate a fantastic appearance, they would steal all of the business from the famous chef!
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avideogameplayer, 17 Aug 2015 @ 10:43am

You wouldn't download a cheesesteak...
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Anonymous Coward, 17 Aug 2015 @ 10:44am

Re:
agreed.
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Roger Strong (profile), 17 Aug 2015 @ 10:44am

Up next...
The farmer who raised the cow and grew the vegetables that made up your steak dinner may demand recognition as the creator that "work." Future sales to restaurants may exclude IP rights.
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Anonymous Coward, 17 Aug 2015 @ 10:44am

Re:
actually, you aren't buying that food, you are licensing it.
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That Anonymous Coward (profile), 17 Aug 2015 @ 10:45am

Germany, giving us amazing examples of the horrors of giving the cartels everything they want and letting everyone else scream me too!
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DannyB (profile), 17 Aug 2015 @ 10:47am

Re:
Photos are a slippery slope. It starts with one person taking a photo of their food. Then they share it with their friends. Before you know it that food is being bittorrented and downloaded all over the planet, putting the chef out of business.
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Violated (profile), 17 Aug 2015 @ 10:49am

Flawed Logic
I can't see how this is possible when if it were you can then have a case of double copyright. What I mean is that the photographer normally owns the copyright meaning any chef reusing their photo is an infringement itself even if you infringed their food first.

Sure I accept that chefs can have copyright if they keep their artistic pudding to themselves when they still have copyright on the videos and photos. Established law has never stopped anyone copyright the recipe when no two creations are EXACTLY alike.

The killer situation though is that the chef has sold you the food at the point they have handed it to you meaning they then lack all control. This is the same as buying an oil painting when you can photo and video this all you want where the original artist then can't stop you.
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DannyB (profile), 17 Aug 2015 @ 10:49am

Re:
Strictly speaking, that is a derivative work under copyright law.
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DannyB (profile), 17 Aug 2015 @ 10:51am

Re: Flawed Logic
Maybe it's not flawed logic. And maybe it's not a conflict.

Maybe it's a plan to make the world free of photographs.
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Anonymous Coward, 17 Aug 2015 @ 10:53am

Re:
> the resulting plate could be considered a work-for-hire

While I agree...
... you need the caveat: under US copyright law.

As this is Germany we are talking about, the law is different.
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Anonymous Coward, 17 Aug 2015 @ 11:06am

Re:
In some situations such photos might acurately describe what you thought of the original food as served by the pompus chef.
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Anonymous Coward, 17 Aug 2015 @ 11:07am

Re:
Yes, and you must pay licensing fees to the chef for the rest of your life for eating their copyrighted food.

If you can't or refuse to pay then the chef can take you to court and fine you tens of thousands of dollars per meal you've eaten from the chef for pirating his food.
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SolkeshNaranek (profile), 17 Aug 2015 @ 11:12am

Re: Re:
more like renting it...for a while
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AnonCow, 17 Aug 2015 @ 11:17am

Wouldn't my purchase of the dish give me some limited right of ownership of that specific plate of food?

If I bought a print of a painting, I would be able to take a picture of it and use it for any non-commercial purpose.
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Adam, 17 Aug 2015 @ 11:18am

A lost of crap
What if I take said Chef's artwork, consume it and leave a load of it in the sink in the restroom afterwards complete with a little notice that this is a work of art through protest and i do not give permission to photograph it... when I'm in court and request to see the evidence of any crime and they present a photograph can I claim copyright infringement and have the evidence tossed out?
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Anonymous Coward, 17 Aug 2015 @ 11:29am

Re:
That actually a well-known ethnic German specialty, so I think it's copyrighted.
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Anonymous Coward, 17 Aug 2015 @ 11:32am

Does Germany have any laws on transformative art? Someone should create a smurf or whatever, and claim this is new art.
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Anonymous Coward, 17 Aug 2015 @ 11:33am

Re: A lost of crap
Too complicated, just puke on the chef, snap a foto and post it.
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Anonymous Coward, 17 Aug 2015 @ 11:40am

A camera doesn't give anyone equal status with the chef. Gadgets don't confer rights, certainly not over creators, let alone for commercial use.
You keep being stunned at laws and general opinion refuting that, run around yapping bewildered at the difference between "theirs" and "yours".

This is like the notion you kids have that because got hold of a DVD that you then actually own the movie, the content, and can copy it as wish. -- NO, you can't.

Laws like this simply clarify that creators have ALL the rights, and that consumers (here literally), have NONE. -- Laws are needed precisely because you kids assert that you can just take anything and everything without permission. You do not at all concern yourself with the making of products, only at taking them. Your only creativity is trying to find weasel-words to excuse it.

It's really astounding that Techdirt and its pirate-fanboys keep their kleptomania intact despite the simple principles and court losses. You are SO last century, kids, and because addicted to crap entertainments, unable to change. Instead of copyright falling, it's being enforced more. -- Read about UK successfully shutting down pirate sites by way of stopping advertising income. You are losing.
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MondoGordo (profile), 17 Aug 2015 @ 11:45am

Re: Re:
isn't the photo itself a derivative work ? Like a photo of a painting?
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Sheogorath (profile), 17 Aug 2015 @ 11:45am

Re:
Actually, in such a situation the copyright would remain with the chef since, under EU law, the copyright in a contracted work no longer automatically passes to the contractor. :(
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Anonmylous, 17 Aug 2015 @ 11:47am

German law
So I assume they do not have a "work for hire" declaration in their copyright laws? The restaurant is not the owner though they pay the chef to do a job that includes preparation AND presentation of a plate of food? Presentation being a part of the job the chef is being paid to do after all.

But then France wants to say pictures of the Eiffel Tower (over 100 years old now) are somehow "copyrighted" by and illegal. Congratulations EU members, collectively your IP laws make even less sense than those of the US.
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Sheogorath (profile), 17 Aug 2015 @ 11:52am

Moral panic
For carefully-arranged food in a famous restaurant, the cook is regarded as the creator of a work.
So when I eat the food, am I violating the moral rights of the chef by 'destroying' their 'carefully-arranged art piece'? 0_0
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Carlie Coats (profile), 17 Aug 2015 @ 11:53am

Der Spiegel: The Real Reason for Germany's Industrial Expansion?
Ironically, this article in the German journal Der Spiegel argues that Germany's experience rapid industrial expansion in the 19th century was due to an absence of copyright law:

http://www.spiegel.de/international/zeitgeist/no-copyright-law-the-real-reason-for-germany-s-ind ustrial-expansion-a-710976.html
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Median Wilfed, 17 Aug 2015 @ 11:57am

Re: A camera doesn't give anyone equal status with the chef. Gadgets don't confer rights, certainly not over creators, let alone for commercial use.
I don't get how this law benefits German society. Surely it's only use is to suppress free speech, which we all agree is a bedrock necessity of a free society, and a productive society. Without free speech a free market can't exists. I also don't understand how the chef in question thinks this is a good idea. Surely he/she will be out-advertised by fans of the chefs that allow pictures of their majestic creations.

I also don't understand the assertion that creators have all the rights. I believe that they don't, legally or ethically. Legally, there are always exceptions, maybe by a food inspector or something. You're making false generalizations.

Glyn Moody just hates it when trolls enforce imaginary ownership of ideas.
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Anonymous Crowad, 17 Aug 2015 @ 11:59am

I wish I could say I was sad about not seeing pictures of someone else's food.
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Sheogorath (profile), 17 Aug 2015 @ 12:08pm

Re: German law
So I assume they do not have a "work for hire" declaration in their copyright laws?
There's a 'work created during the course of employment' clause, which means that Max Spielmann is the copyright holder of passport photos taken of me there, rather than me or the person who actually took them. Basically, yes, the restaurant is actually the copyright owner rather than the chef, despite the fact that the decision misleadingly says otherwise.
But then France wants to say pictures of the Eiffel Tower (over 100 years old now) are somehow "copyrighted" by (sic) and illegal.
Actually, the claim is that the light display on the Eiffel Tower is copyrighted, so you can get slapped with a C&D for photographing or painting it at night, but daytime images are just fine.
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Gracey, 17 Aug 2015 @ 12:10pm

Re: A camera doesn't give anyone equal status with the chef. Gadgets don't confer rights, certainly not over creators, let alone for commercial use.
Oh for god's sake. Get a grip.

Nobody is pirating the FOOD, nor anything else.

If I PAID for that food, I'll bloody well take a photo of it if I so please.

Once paid for it's MINE, not the Chef's. I get to say what I do with MY meal, not some Chef.

... no matter where the restaurant is.'

jesus, pretty soon photographers will have to scuttle off into dark places with the things they BUY and OWN just to take a picture.
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Anonymous Coward, 17 Aug 2015 @ 12:10pm

Re: We must stop copycats
I'll have the turkey browned with shoe polish and watered down white glue for extra white cereal milk, please.
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Anonymous Coward, 17 Aug 2015 @ 12:17pm

Re: Re:
Mmmmmmm, photograph - mmmmmmmmmm
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Anonymous Coward, 17 Aug 2015 @ 12:20pm

Re: Flawed Logic
Don't know about Germany, but in the US a recipe is not afforded copyright protections, only the presentation of said recipe.
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Anonymous Coward, 17 Aug 2015 @ 12:22pm

Re: Re: A lost of crap
"Tell the cook this is low-grade dog food…this steak still has marks where the jockey was hittin' it."
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Anonymous Coward, 17 Aug 2015 @ 12:25pm

Re: A camera doesn't give anyone equal status with the chef. Gadgets don't confer rights, certainly not over creators, let alone for commercial use.
Paid shill seems confused and runs out of talking points, film at eleven.
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Anonymous Coward, 17 Aug 2015 @ 12:28pm

Re: A camera doesn't give anyone equal status with the chef. Gadgets don't confer rights, certainly not over creators, let alone for commercial use.
Do tell us how people are pirating the food that they paid for. Or is it that you are just a shill whose sad assed rhetoric has descended past Baghdad Bob's level of unconsciously amusing propaganda into some paranoid lunatic ranting and frothing at the mouth at your make believe enemies?
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Glenn, 17 Aug 2015 @ 12:29pm

36 hours later...
Hey, chef... I'll send you another photo after I finish "processing" it--the food, I mean. All looks pretty much the same then, huh.
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Anonymous Coward, 17 Aug 2015 @ 12:37pm

Re: A camera doesn't give anyone equal status with the chef. Gadgets don't confer rights, certainly not over creators, let alone for commercial use.
By all means, I say LET this chef pursue his copyright claims. After all, what better way to confirm that he's a pretentious dickbag, than filing a suit over a picture of food?

I can't imagine this would bode well for him or the restaurant, but fuck it.
Sometimes in order to point out there's a hole in the boat, you've got to let the damn thing sink!
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Anonymous Coward, 17 Aug 2015 @ 12:39pm

Re: A camera doesn't give anyone equal status with the chef. Gadgets don't confer rights, certainly not over creators, let alone for commercial use.
Pirate-fanboys?

What are you, fucking 12 years old or something?
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pegr, 17 Aug 2015 @ 1:08pm

Re: Up next...
So the meal is a derivative work? I like it!
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Anonymous Coward, 17 Aug 2015 @ 1:11pm

So...I don't own what I buy?

And if I eat it, and poop it out, does it still belong to the chef?
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Anonymous Coward, 17 Aug 2015 @ 1:21pm

Re: Re:
I've been seeding the mcribs for years. its the only way to ensure they are available.
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Anonymous Coward, 17 Aug 2015 @ 1:27pm

Re: A camera doesn't give anyone equal status with the chef. Gadgets don't confer rights, certainly not over creators, let alone for commercial use.
Thats incredibly lame! What if I arrange the food in the same order. Does the chef now own it?
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Anonymous Coward, 17 Aug 2015 @ 1:28pm

This sentence says you didn't read the article before you lept in to comment
"By all means, I say LET this chef pursue his copyright claims. After all, what better way to confirm that he's a pretentious dickbag, than filing a suit over a picture of food?"

What chef? What claim?
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Anonymous Coward, 17 Aug 2015 @ 2:56pm

Re:
...What about the food after the body has processed and eliminated it? Is that copyrighted?...

Years ago somebody trolled the usenet porn groups with pictures of exactly that. Would've made an interesting court case not only for any copyright claim, but 'truth in labeling' regulations as well.
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Anonymous Coward, 17 Aug 2015 @ 3:07pm

Doesn't copyright require that a work is fixed in a persistent form, and wouldn't that make the food rather inedible?
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Atkray (profile), 17 Aug 2015 @ 3:23pm

Re: Moral panic
You had to go there didn't you?
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Anonymous Coward, 17 Aug 2015 @ 5:40pm

out_of_the_blue believes that if people take pictures of food, no one will want to pay for it because copyright something something.

Anyone else wonder why nobody gives two shits about copyright? It's because of the idiots that do, and do so in the stupidest ways possible.
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Anonymous Coward, 17 Aug 2015 @ 6:22pm

Re: Flawed Logic
Isn't there the difference between American copyright and European, German in this instance, where there is a greater focus on the moral rights of the creator in Europe, with the ability to execute continued control in a limited extant even in situations such as a work for hire... Read a lot so could be mistaken.
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Andrew D. Todd, 17 Aug 2015 @ 7:41pm

Nutjob Restaurants
There was a rather funny article in this month's Harpers ("A Goose in a Dress: In which our intrepid restaurant critic submits to the dreams and excesses of New York's most fashionable eateries," Harpers, Sept 2015). I'm afraid it's not available on the internet-- Harpers is old-fashioned about that. At any rate, Ms. Gold visited a number of very expensive restaurants, about a thousand dollars a plate. What emerged was that these people were not content to merely feed her, but they had a desperate desire to indoctrinate and reprogram her, like the Scientologists, or whoever. At any rate, she managed to vomit half of a $798.06 meal. The to-do about cameras is simply part of the standard nut-cult fussiness.

http://www.spectator.co.uk/author/tanya-gold/

http://harpers.org/archive/2015/09/a-goose-in -a-dress/
(first page)

One of my father's bon mots appears to apply to this kind of restaurant: "A Victorian servant class... and while they... [considering voice] probably... would not put poison in one's food, they might [rising New England honk] very well urinate in it!"

That said, it is probably wise to avoid certain types of over-egotistical chefs on general principles. Someone who is that sick has probably...
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Sheogorath (profile), 17 Aug 2015 @ 8:14pm

Re:
No, the exact wording is 'fixed in tangible form'. 'Tangible' in this case means 'perceptible'.
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Sheogorath (profile), 17 Aug 2015 @ 8:25pm

Re: Re: Moral panic
Hey, the French started it with their perpetual droit d'auteur. :D
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orbitalinsertion (profile), 17 Aug 2015 @ 9:02pm

Re: Re: Flawed Logic
It's a backdoor attempt to mitigate the social image sharing flood of "look at my fucking dinner".
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Anonymous Anonymous Coward, 17 Aug 2015 @ 9:17pm

Re: Nutjob Restaurants
You know, there is more to a restaurant experience than food Sure a restaurant can be a feeding station,but there are others that compete on a different level, Without going into some kind of masters class about it, let me discuss service for a moment. There are a bunch of things that go into making a restaurant good (or even harder, great) than are mentioned here.

There are three basic forms of service, known in the industry as quick service, family style and white table cloth. These terms are outdated, and do not represent the full spectrum of available services. A more comprehensive analysis might include such behaviors known as American Service (plated in the kitchen and delivered to the table), Base Plate Service (everything is presented on a dish on top of the base plate that is present when one sits down and the silverware present has only to do with the current or next course, and is replaced with each course), Modified Base Plate. which has many variations of the afore mentioned depending on the desires of the particular operation, Russian Service (where the food is plated to a tray and then is served from the tray to the plate at the table (not common at all, but I observed a banquet at the Waldorf Astoria being served this way, and it was both efficient and formal)) and French Service (where the food is either prepared, finished, or cooked entirely tableside on a rachaud set upon on a gueridon). There are more, but attention spans are limited, and teaching the how to's of any of these would require a different forum along with someone with better expertise than I to teach them.

When a restaurateur develops a restaurant, there are decisions made about (but probably not from this perspective) as to how pretentious they want to be. Some of that has to do with the clientele they wish to attract, and some of that has to do with either knowledge or ego. If a restaurant is charging $1000 a plate, there is a LOT of ego being served. It certainly does not have to do with strictly food cost.

People who attend restaurants often think they know a lot about what is going on in that restaurant, and actually don't. I have had reviewers rave about my fresh peas when all I did was treat my frozen peas (by definition already cooked) with respect. The chefs of Washington DC got a bunch of restaurant reviewers on a PSB program (a very long time ago) and tore them apart for many assumptions made by pretentious know it alls who actually knew very little).

I used to have to analyse restaurant performance, not for reviews, but to help them achieve their potential in their individual markets. Each one was different, and while I could discern certain issues from the dinning room, I did not get all the answers until kitchen observations were completed (such observations are NOT for the lay person).

So, take anything you read about restaurants with a grain of salt the size of Antarctica, until you have followed a particular reviewer for a long while, and understand how to contrast their written opinions with your actual experience.
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Rekrul, 17 Aug 2015 @ 11:26pm

So if I draw a completely original design and have it tattooed on my face, can I sue every organization with a security camera and prevent the police from taking my photo if I'm arrested?
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Anonymous Coward, 18 Aug 2015 @ 12:28am

Re: A camera doesn't give anyone equal status with the chef. Gadgets don't confer rights, certainly not over creators, let alone for commercial use.
I've got your pirate food for you right here, let me pull my pants down so you can take it back.
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Sheogorath (profile), 18 Aug 2015 @ 1:14am

Re:
That would be ruled unfeasible, unfortunately. However, you may get more mileage if you got an original design tattooed on your face, then sued the authorities to prevent them releasing any images they make of you. ;)
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PaulT (profile), 18 Aug 2015 @ 2:22am

Re: Re: A camera doesn't give anyone equal status with the chef. Gadgets don't confer rights, certainly not over creators, let alone for commercial use.
He has that mentality, at least.

I'm waiting for the ultimate end to this idiocy - the claim that those of us who choose to cook at home instead of eating out are "pirating" and responsible for any nearby restaurant closures.
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PaulT (profile), 18 Aug 2015 @ 2:24am

What about the plate itself? I mean, the food's all well and good, but it would be difficult to serve if someone had not already designed and built the actual plate, along with cutlery and any other utensils nearby. They will be in the photo, so don't they get more copyright protection than the food? Where's the protection for the poor, neglected ceramics producers, who only get paid once while the restaurant gets paid repeated every time they use their product?

Makes as much sense to me, anyway...
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Anonymous Coward, 18 Aug 2015 @ 4:24am

Clearly what needs to happen is this.

Instead of taking a picture of the food, take a picture of the dump after you've eaten the food, and credit the chef. "Unfortunately we can't show you what the food looks like due to chef's copyright, so here's what the food looks like after."

If the chef orders it taken down, he doesn't own the copyright on your poop. If he does, send it to him.
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Vaness, 18 Aug 2015 @ 5:57am

Wow!Best read ever!So many topics these days on copyright for different events that involve food.
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Alper Cugun, 18 Aug 2015 @ 8:59am

This kind of absurd control on the free flow of information and ideas practiced in Germany is also how I explain that culture here is so incredibly stale.
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Andrew D. Todd, 18 Aug 2015 @ 10:24am

Re: Re: Nutjob Restaurants
I don't know that I'm as refined as all that. A high proportion of the most interesting culinary experiences I have had... well, they have been at food trucks, or food carts, serving the authentic cuisine of some place on the other side of the world. In a way, I tend to think about cuisine in terms of "terroir," if I may borrow the wine-term, that is, the rootedness of cuisine in the soil, and, by extension, the land. The land endures, no matter who rules it. A long time ago, as a boy, I spent a couple of years in the South, in Texas, and became familiar with Southern Country Cooking in its various forms. The truly archetypal Southern Country cook was a slave woman, a "mammy," combining her own West African heritage with European elements, especially French, to form a complex synthesis. Food is a kind of essential under-strata of life, if you want to put it that way. At a certain level, an urban restaurant which could not possibly have a couple of graduate students in a corner, talking shop, or organizing a revolution, is not a real restaurant.

Going by Tanya Gold's description, these high-end restaurants declare the chef to be the Living God, and strenuously attempt to get the diners to worship him. That is the very heart of a nut-cult, that the leader is God, and cannot be judged as a mortal man. It's the whole "cult of personality" business, similar in principle to that of Kim Jong Un in North Korea. The chef cannot admit that he is continuing a culinary tradition a couple of thousand years old, which is much bigger than any of its cooks, but he has to set himself up as a unique genius. I choose my deities with somewhat more care than that.

The high-end restaurant seems to cater to people who have neither intellect nor soul, who consequently have no conversation, and are likely to be recruited to the nut-cult-of-the-month, and take part in its Jonestown-like mass-suicide by cyanide-laced kool-aid.
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MrTroy (profile), 19 Aug 2015 @ 12:08am

Re: Re:
Is this the case even under US copyright law, without a signed contract?
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MrTroy (profile), 19 Aug 2015 @ 12:11am

Re:
Question:
Wouldn't my purchase of the dish give me some limited right of ownership of that specific plate of food?

Answer:
Apparently, this situation goes back to a German court judgment from 2013, which widened copyright law to include the applied arts too. As a result, the threshold for copyrightability was lowered considerably, with the practical consequence that it was easier for chefs to sue those who posted photographs of their creations without permission.

No
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Wendy Cockcroft, 19 Aug 2015 @ 5:40am

Re: Re: A camera doesn't give anyone equal status with the chef. Gadgets don't confer rights, certainly not over creators, let alone for commercial use.
It's not about the food itself, Gracey, it's about the IDEA of the food, if that makes sense. OOTB there thinks you can OWN and retain full CONTROL of an idea, that this is an inalienable property right, and that it ought to be enforced in law.

The fact that this is moronic nonsense appears to have sailed over its Red Scare-malformed cranium at some point.
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Anonymous Coward, 20 Aug 2015 @ 5:48pm

Pics or it never happened
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Anonymous Coward, 21 Aug 2015 @ 5:50am

What, no copyright tariff on professional stoves and pans?
...and other things that could conceivably be used to infringe these chefs' copyrights? If they want this type of 'protection', well then they should be the ones paying the 'you must be a pirate' tax!
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