Is Photographing A Meal 'Taking Intellectual Property Away' From A Chef?

from the not-getting-the-point dept

Via Rob Hyndman, we discover that at least one chef believes that taking photos of food he cooks, and then posting them on the internet, is “taking” his “intellectual property.” We’ve discussed in the past how restaurants are yet another area where a lack of copyright protection has actually helped innovation thrive. But, that doesn’t mean that some chefs don’t still feel excessive levels of ownership over certain aspects of what they do. We’ve occasionally seen lawsuits between similar restaurants, but could you take it even further?

The article linked above, from Eater, talks to a number of different chefs to get their opinion on diners photographing the food that they’re served. Most seem to have a grudging acceptance of the practice. The first chef, Sean Brock (from Husk and McCrady’s in Charleston, South Carolina) appears to be the most enthusiastic, saying that he actually loves it when diners photograph the menu, because it even helps remind him what they made and also puts more pressure on the cooking staff to make sure the plates look good. However, a couple chefs down, there’s RJ Cooper (from Rogue 24 in DC). He admits that they allow (non-flash) photography, mainly because he can’t really stop it. But he’s certainly not happy about it. After being asked if his opinion about people photographing dinner had changed, he said:

No, I still have the feeling. You’re there for the dining experience with your companion, not to take photos of food. They publish food photos without your consent, which is taking intellectual property away from the restaurant. And also, generally, the photographs are terrible.

I’m curious how this is “taking intellectual property away from the restaurant.” Unfortunately, it seems like yet another sign of the kind of “ownership culture” that is being spread by copyright maximalists these days — encouraging the world to think they have “ownership” over things they have absolutely no rights to. The restaurant can legally refuse to serve someone, or kick someone out of their restaurant for taking a photograph if they wanted (though, that would likely hurt the restaurant’s reputation), but there simply is no serious intellectual property issue in having someone take a photograph of the dinner they were served. Is there a lawyer crazy enough to make an argument that the cooking and plating process creates enough creativity in a “fixed” manner that it deserves copyright? Perhaps, but even then I’d have a hard time believing the photograph was not perfectly legitimate fair use.

All in all, I think it’s unfortunate that we keep seeing more and more examples of people believing they “own” aspects of culture and can prevent others from sharing them, and regret that this is what our culture has become in an era where kids are being (incorrectly) taught that copyright is just like “property” for things you create. It leads people into thinking they “own” anything they do.

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Comments on “Is Photographing A Meal 'Taking Intellectual Property Away' From A Chef?”

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PaulT (profile) says:

“You’re there for the dining experience with your companion, not to take photos of food.”

But… part of the dining experience is the food. People like to take photographs to remind themselves of good experiences, so taking pictures of food as well as the people you’re dining with is part of the experience, surely?

Why is it that copyright maximalists always seem to start from a position of completely misunderstanding their own customers?

“They publish food photos without your consent, which is taking intellectual property away from the restaurant.”

I also remember the meal I had, and might attempt to recreate it at home, sharing that experience with other people in the future. My God, I’m a pirate, lock me up!

It’s worth noting that this is just another version of the “piracy = theft” idiocy, which some people still can’t understand isn’t true despite it being the very basis of their fallacious arguments. What a shame people still can’t understand the basic concepts they’re dealing with, let alone the reality of how things really work.

Chosen Reject (profile) says:

Re: Re:

But… part of the dining experience is the food. People like to take photographs to remind themselves of good experiences, so taking pictures of food as well as the people you’re dining with is part of the experience, surely?

My wife is Vietnamese and claims that this is especially true of Asians. She shows me her friends’ Facebook feeds; her Asian friends have pictures of food at least one in ten posts but usually more often than that, while her non-Asian friends rarely if ever have food pictures. If a restaurant were to tell my wife or her friends that they couldn’t take pictures of the food, they’d all immediately leave and never come back.

Bob V (profile) says:

Re: Re: Re:

I think its interesting that just this morning my daughter had a twitter post linking to a picture of her over priced coffee drink. Any chef complaining about people taking pictures of their food is actually worried about other things rather than his IP. Our culture revolves around sharing information and with so many people carrying easily used cameras on their phone with the ability to instantly share their thoughts and experiences via social media.

Ant says:

If I found such a crappy attitude at a restaurant...

I’d suggest that as everything in the human gets recycled over time and the redundant items expelled as waste, I have in fact not bought a meal from meal, I have in fact merely hired it, and then ask where in their non-photographable restaurant they would like the remains placed? A table? A chair, or perhaps the entrance?

The normal disposal facilities would not be appropriate in such a case as I’m sure the restaurant will need to agree disposal with the grower in some fashion too, surely?

Ninja (profile) says:

Srsly? If I take a pic of the food it’s because it looks so damn good I wanna share with other ppl. I’ve done that several times. I take the picture, publish and encourage them to try that place. Doesn’t matter if it’s not a professional shot, I’m doing some damn good advertising for you. RJ Cooper is one of the many ‘stars’ that is completely out of touch with reality.

Anonymous Coward says:

It’s true, I see a picture of a Chef’s food and then I get a craving for that food, so I make it myself at only half the price the Chef is charging.

That makes me a bad person. I guess we should outlaw home kitchens to protect the Intellectual Property rights of chefs, since kitchens can be used to infringe on their Intellectual Property.

Paul L (profile) says:

I’m not sure what the problem is here.

Everyone should already know that you’re not BUYING that meal at a restaurant, you’re just licensing a single use of the meal. You have no first sale rights either, so don’t even THINK about taking home a doggie bag!

Sharing? Forget it.. That’s a violation of the license right there. If you order a plate of fries you can NOT share with a friend, that’s outright theft!

These restaurants hire workers of all sorts. Think of the dishwashers?! If you share a plate of fries with a friend you are depriving the dishwasher of an extra dish to clean and thereby hurting the industry and their ability to employ workers….

Silly people.. When will you learn..

Anonymous Coward says:

Re: if i buy it i can take a picture of it. end of story

Exactly. Can a T-shirt manufacturer sue me for posting that picture of me wearing his product?

Then again, if you’ve ever had to deal with chefs you’ll know that too many of them have over-inflated egos without the brains to match.

ChrisH says:

Re: Re: if i buy it i can take a picture of it. end of story

Good question. The answer is that copyright does not generally apply to functional items. That is why clothing designs are not covered. However graphics are so if the shirt, bag, etc. contains one that doesn’t depend on the overall shirt design (the graphic could exist on its own) it could be copyrighted.

It’s also not black and white. A full shot of a person wearing a shirt that had a small logo would be much less likely to be considered infringing than a photo that was zoomed in to show only the logo. Also, a drawing which is “purely creative” would be treated much differently than a photo of common objects (such as a burger and fries) since there is only so many ways to arrange items on a plate.

Taking a picture of a copyrighted sculpture, building, etc. is infringement. I don’t agree with that. I think if you’re taking a picture of a three dimensional object, the photo is a sufficiently different work and the copyright should belong to the photographer.

For food, I think the plate would have to be considered a sculpture. However, since it’s also functional (you’re supposed to eat it) I doubt it would be given copyright protection. There are other factors that don’t favor the chef. For example the photo is not going to compete with the original in the same market (you can’t eat the photo). Also as I mentioned above, if multiple chefs make the same dish (which cannot be copyrighted by the way), there is only so many ways those components can be put on the plate. So in summary there is little or no copyright for plated dishes.

So if there’s no copyright, by what method can a restaurant prohibit you from taking photos. I guess they could always throw you out but suppose the don’t notice. Is there anything they can do about it after the fact? What about a small notice in the menu that sets forth dinner terms & conditions? Would that hold up? I don’t know. They do seem to be able to write a notice about automatically included gratuity, but that is a much more common practice and you could argue that most dinners expect it.

Legalities aside, I wouldn’t support being able to copyright “plating” because I just don’t think it will benefit society. Chefs already make money from the diners. I don’t care if they can’t make royalties from food photographs.

If you read the linked article above, most of the chefs don’t care and they give a good explanation about why some do. It’s a misunderstanding of the creative process; not realizing that everyone borrows from everyone else. Creativity doesn’t occur in a vacuum. It’s a knee-jerk reaction that a lot of people have. Probably helped by all the brainwashing by the MPAA and others like them.

nospacesorspecialcharacters (profile) says:

Re: Re:

Presumably the restaurant dish is already a transformative work of the farmers IP.

That’s right, chefs all over the world are taking a farmers original work of livestock and grain and creating derivitive works in their restaurants.

They should simply provide the work as is, to the customer. Chicken dish – here is your live chicken, sir.

G Thompson (profile) says:

“[which] is taking intellectual property away from the restaurant”

So if taking a photograph of the food (lets call it IP for brevity) is theft of intellectual property what would eating that same IP be. Remembering that it’s not copying,, it’s actual destruction and full removal of the IP, never to be ever had or seen by the creator again.

And to make it even worse, anywhere from 8 to 24hrs later that same stolen and destroyed IP is transformed into what some art critics of the IP would call a stinking pile of crap to be fit only to be flushed down the toilet of despair.

Oh the horror… Can’t anyone think of the Chefs . We must somehow come up with a system to make these stinking thieves and pirates of all things edible pay for there destruction and recycling of this IP…


hmmmm.. Bill please Garson

Capt ICE Enforcer says:

Re: Re:

Your in luck G Thompson,

The penalty for destroying property is a lot less than the penalty for copying it. After all, you are not really destroying the property, you are transforming it into something new, which then you can hold the copyright on. But when you copying something. Well that is much worse, and the whole world suffers. To include the big corporations which owns the property. Aren’t you concerned about the big corporations.

Capt ICE Enforcer Out.

G Thompson (profile) says:

Re: Re: Re:

I am so concerned about the big corporations suffering that I propose, at great cost to the masses, that we send them all our transformed food so they can smell the sweet scent of our labours and know that us common people appreciate them.

We could even send it via ICE, because as we all know, ICE keeps things moist and fresh ๐Ÿ˜‰

ChrisH says:

Re: Re:

So if taking a photograph of the food (lets call it IP for brevity) is theft of intellectual property what would eating that same IP be. Remembering that it’s not copying,, it’s actual destruction and full removal of the IP, never to be ever had or seen by the creator again.

That’s why IP as a term doesn’t make sense. Destruction is a property right but the “owner” of “IP” doesn’t have this right, nor any of the other rights associated with property ownership.

Anonymous Coward says:

This is just the natural extension of the notion that copyright is about “protecting” artists, rather than enhancing the public domain.

Any chef will tell you that a good portion of a dish’s appeal is visual – they call it “presentation”. If a plate looks horrible, people will be less likely to want to eat it. If it looks good, people will be more likely to want to eat it.

Have these idiots never thought that “hey, these photos of my food are being taken so they can be shared – if people like the presentation, that will make more people want to come to my restaurant!”????

RD says:

Re: Re:

“Have these idiots never thought that “hey, these photos of my food are being taken so they can be shared – if people like the presentation, that will make more people want to come to my restaurant!”????”

Of course not. This is merely a variation of the Pirate Credo of “free advertising” that you Mike’s Kool Aid Drinking Freetarding Thieves ™ think is a valid excuse for stealing (oh sorry, *sharing* …pah!). You all just want your meals for free.


Anonymous Coward says:

“which is taking intellectual property away from the restaurant”

Lord, isn’t it gauling when people who don’t really a phrase or concept try to wield it as an argument but use it totally out of context?

You can’t ‘take away intellectual property’ any more than you can ‘erase somebody’s memories’ or ‘stop them thinking about something’.


Anonymous Coward says:

Off topic, but I dined at Rouge 28 recently at a table near the chefs (it has an open kitchen in the middle of the restaurant). I overheard RJ Cooper make a very snotty comment about a table in the back photographing their plate (he was loud about it though not loud enough for the photographers to hear). His negativity affected my entire table and our perception of the overall experience. My official takeaway is “meal was good but the chef is a douche so be on your very best behavior while you’re dropping several hundred dollars on his food.”

Ima Fish (profile) says:

Mike, one of these days you should do a write-up of how the growth of ownership culture coincides with the growth of the sharing/pirate culture.

The ownership culture is more than just large corporations. You hear people bitching that people are poaching their facebook posts. You hear mothers-to-be bitching that some relative “stole” the name they were going to use for their child. Some people guard their recipes as if they’re national secrets.

How is the pervasive ownership culture compatible with our culture of sharing? It doesn’t seem to make any sense.

Steph (user link) says:

I take stock photographs as a sort of side business (read: passive income for when I’m old), and a call went out for a picture of a Mexican dinner. I went to Escalante’s in Houston, ordered my meal, and whipped out my camera for the money shot.

Out roars the manager, asking me what I was doing and when I told him, he asked me to put my camera away. The shot included nothing more than the plate and the food, no proprietary surroundings or logos, nothing.

I did as he asked, smiling sweetly the whole time. When the waiter came around to refill our tea, I asked for a to-go box. Took the food home intact, laid it all out on a platter I had at the house, and took the shot. The image still sells regularly today.

People are cuhRAZY.

Anonymous Coward says:

Why do you think some chefs are more apprehensive about it?
I really think it’s basically down to this: guys ? chefs or cooks ? are jammed up or upset because they think someone will steal their ideas or something like that. But you have to realize that everyone learns and borrows from everybody else. What could be better than showing a group of young chefs a technique or way to do something?

RJ Cooper, meet someone who understands how the world of food works.

Anonymous Coward says:

I happen to have developed a particularly silly walk and believe that nobody should get to walk this way without my permission or make videos or photographs of my silly walk. My walk is individual to me and therefore my intellectual property. That is why I am trying to patent my silly walk with help from the Ministry of Silly Walks.

mattarse (profile) says:

I used to be a chef, not too many years ago, and I remember we would put a lot of effort into the presentation. Some studies have even shown that presentation is one of the larger factors in whether someone enjoys a meal or not.

I remember the first time a waitress came to the kitchen, in probably 2002 or 3 and told us someone was taking pictures of our food.

We were proud of it when we heard, but apparently we missed the boat. I didn’t realize we could be like aging rock stars and get future income from royalties that those thieves aren’t paying now. I can just imagine those thieves flipping thru the photo album, and the sense of joy they have from stealing that picture.

illuminaut (profile) says:

Can you elaborate on the point about intellectual property?
If you’re publishing something in a public forum without written consent, that’s problematic. I want the photos to represent the standards of the restaurant. If I post a fuzzy picture from Schwa, for example, I don’t think it would be right to spread that.

These are the same people who love to sue people for leaving less than stellar feedback on public forums. Now RJ Cooper outed himself not only as a douche, but it’s also clear that he doesn’t even understand what intellectual property is. Way to go, RJ!

DannyB (profile) says:

Eventually none will be left

Each photo taken removes a small but measurable bit of intellectual property. The units of measurement and equipment to measure this real physical phenomena are a closely guarded secret of Hollywood.

If enough photos are taken, eventually no intellectual property will be left.

It’s like how each time you skip a commercial, a TV executive shrieks as though he was thrashed by a rabbit ear antenna from the era of when commercials were unskippable.

Or like how each time you hum a song, the RIAA executives become a little bit poorer, the collection societies a little bit richer, and the artist wondering where his cut is?

Didn’t your mom ever tell you to stop photographing your food?

Lazy Coward says:

Can’t wait for Googles AR glasses to hit the market and become popular. Then no arrogant Restaurant or chef will even know people are photographing (and gasp recording) the food they’ve paid for.

The future doesn’t look to bright for arrogant chefs who don’t want people photographing their food.

I hope this “issue” only gets worse for them.

dewtheone says:

Celebrity Chefs

I blame things like The Food Network. They actually have chefs, or in many cases line cooks, believing they are some kind of celebrity or rock star now. It’s ridiculous! You cook food for a living. You’re not that special. Get over it! You need either a culinary degree or a weekly TV show to make hot dogs in a food truck these days. And by the way… if they don’t want photos taken or any kind of IP used, I guess there will be no more restaurant reviews allowed. No more free publicity. You can make your IP in complete obscurity. We’ll see how your fake-celebrity ego can handle that.

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