Skyscraper

Monday, May 28, 2007

Legality of Taking Food Photos In Restaurants

How do you know when your blog has made it in the Food Blogosphere? Is it when you get a threatening email from the head chef/owner of a restaurant telling you to remove a review you did of their restaurant. If it is, then "Ladies and Gentlemen, welcome to I Eat Therefore I Am".

First let me set up the story and then go on to discuss the legality of taking food photos in restaurants. I got an email today supposedly from Matt McConnell, head chef and owner of Bar Lourinha. I had been to Bar Lourinha not too long ago and had written a review. Please go and read the review here first before you read on so I don't bias your judgement.

So you've read the review hopefully, sounds quite fair right. I didn't love the place but didn't say anything defamatory. I gave my honest opinion and even recommended people should still go if they like crowded places. Well, apparently Matt doesn't like my review or objects to something within it.

Here is the email I got from Matt.

To whom it may concern,

please take us off your web site!!!! Firstly we are horrified that you thought it would be okay to take photos of our food in our restaurant without our permission, if you do not take this ridiculous information of your web site in the next three days I am prepared to seek legal advice and sue you. You have breached a million different copyright laws and should be very careful.

Concerned owner,

bar lourinhn√£
37 little collins st,
melbourne+61 3 9663 7890

My initial thought was that it was more spam email. But then the email address is quite convincing. It's not your typical yahoo or hotmail account, but that of a large ISP with Matt's name as the address and his full name as the person sending it.

So if it really is from Bar Lourinha, firstly I'm honoured that a)they read my blog, and b)that they even care what I write about them. This blog isn't that widely read and even if it was a totally terrible review, it would not come close to influencing as many people as the glowing review from The Age's John Lethlean.

If this is just a joke, its pretty elaborate whoever's done it. Maybe its his PR team trying to generate more buzz for the restaurant. That's very good work if it is because I find it totally hilarioius. It's worked too because here I am talking about the issue and giving them more publicity. However, I think they may have targeted the wrong blog, they should have chosen an even more popular blog.

Anyway, the issue I have with Matt is that he could have nicely asked me to take down the photos, in which case I would have. But to threaten me with all these legal jargon and bring in the law for what I see is such a non-issue is unbelievable. I've sent a reply asking him what is exactly wrong with my photos and review. I haven't claimed that I saw dead rats in their kitchen and then went and photographed it. I have merely photographed the food, of which I have paid for, and posted it on the web, like a million other food bloggers. Is his objection to my review due to it not being totally glowing? If his objection is purely due to the photos, I'm sorry to say that I feel I am well within my rights to photograph the food and then post it.

From the quick research that I have done, it would seem that once a photograph is taken, as long as its not defamatory and not used to generate revenue, the owner of the photos has copyright on it and can do as they wish. Even if there was a sign in the restaurant saying "No Photograph", they have the right to kick me out, but still not take my photograph from me. There was no sign at all in the restaurant telling me not to take photos. If there was, I wouldn't have taken any photos. You can't change the rules afterwards and tell someone they can't take photos of your restaurant without them knowing at the time.

Generally when I take photos in restaurants, I just take photos of the food and the restaurant in general. I don't take too many of the whole place with flash as that would disturb people. I also don't zoom in on individual people and invade their privacy. It's always photos of the crowd in general, my friends/family and I, and of the plates of food. Whether restaurants like it or not, with the rise of digital cameras (every phone now has a fairly good camera even) the number of people taking photos will just keep increasing. Here is a great article about food photography and some of the issues that may arise.

As for opinion regarding the legality of taking photos in restaurants, most people's opinion is that it is legal. I would need to speak to an IP lawyer to be sure, but some replies at eGullet forums from lawyers would suggest that it is totally within a person's legal rights to take photos of their food. For some resources about the legality in Australia, take a look at this website. From reading it, my interpretation is that I am totally within my right to take the photos and post them on my blog.

What is your opinion on this issue? I'm not going to step down and remove the photos unless its the last course of action before going to the courts or if I get an apology. I don't like being bullied, especially when I don't think I have done anything wrong.

26 comments:

  1. Good on you for sticking to your guns, Thanh7580! I am absolutely not a copyright expert, but I would be very surprised if your actions violated fair use and other related laws. I hope this doesn't actually have to move to the legal sphere for you.

    ReplyDelete
  2. Mr. Do,

    Maybe you can offer an out of court settlement of say.. a free MP4 player sent to me.

    ReplyDelete
  3. I've always wanted people to post 'real' reviews of restaurants and getting it from a real person seems to give that unbiased perspective - so thanks. I would hope that Matt would take on board your comments and grow from the situation (and perhaps visit the other restaurant to understand the comparison). People are too quick nowadays to get all 'hoyti-toyti' about critisism and want to sue at the drop of a hat. I say Matt should mature and eat a bit of his own humble pie.

    ReplyDelete
  4. Cindy, I will only remove the photos should it come to a full on legal threat that looks like I will lose hehehe. I don't have money to fight a legal battle.

    Anonymous 1, an out of court settlement sounds good to me. I'll even take you along for the dinner because I don't think they do MP4s.

    Anonymous 2, I hope it was just a joke and not really from him. Because if it was, its very unprofessional seeing as I am only giving my honest opinion and did not defame him in any manner at all.

    I also like to read reviews from "real" people as you know they have no ulterior motives rather than just to impart information. Professional reviewers probably get extra special service that you and I won't get and will hence affect their review. Their meals might also be paid for, which again may affect their review.

    ReplyDelete
  5. How can this person claim a few photos of food that was purchased by the person eating it has broken "a million copyright laws" when they also state they have not even got any legal advice yet?

    ReplyDelete
  6. Hi Thanh,

    Oh gosh, that is hilarious although the threat is disconcerting if not a tad juvenile! Don't understand- any publicity is good publicity and a place like Bar Lourinha (if in fact the complaint was from them) doesn't need to worry about any amateur food bloggers- we're only small fry afterall!

    ReplyDelete
  7. Will this be a case of the Streisand effect?
    http://en.wikipedia.org/wiki/Streisand_effect

    ReplyDelete
  8. Btw you misspelled 'hilarious' - just being a typonazi :)

    J

    ReplyDelete
  9. And furthermore this "plastic Stasi" attitude everyone seems to be getting DOES have to be nipped in the bud. Merchants, big or small, are NOT institutions and their businesses have LESS rights than an individual - so far and let'd try our damndest to keep it that way eh!

    J

    ReplyDelete
  10. is that email for real thanh? we food bloggers are small fry and all we are doing is trying to relive our eating experiences, express our opinions and share it with the few who choose to read our humble little blogs. Nothing for restaurants to fear i would've thought.

    As for the copyright infringement issue, if taking pix of the food and publishing them on a blog is infringing copyright laws, then surely the same thing would apply when taking a photo of say the sydney opera house and showing them to friends, saying it wasn't that special. I'd like to think that Jorn Utzon would have better things to do than object to such criticism (he probably got more than his fair share, anyway). I'm really hoping that this email wasn't from the owner himself, as i really, really liked the place when i ate there :(

    ReplyDelete
  11. Anonymous, I guess they were making it up as they went along, trying to sound as threatening as possible.

    M's nemesis, I'm still not sure if its from them, some PR stunt (doubt they would choose my tiny blog for a PR stunt) or some elaborate hoax. Whoever it was went to the effort of setting up an official email with their ISP, scouring the web for a review and then sending an email. Otherwise, I don't understand why they would object to my review.

    Anonymous, I like the sound of the Streisand effect. They're definitely not doing their reputation any good, if it really is them. Being one for conspiracy theories, I wonder if its some other up and coming Spanish restaurant trying to tarnish their name? Di dooo di dooo.......

    SahJonOJon, you'll find heaps of spelling and grammatical erros on this blog. I've gotten too lazy to re-read my posts and speel chek eveyrthing :-).

    What does plastic Stasi mean? And what is let'd? Anyway I surmise that you are being funny and agree with my point of view? I'm not 100% sure though.

    Serenity Later, that is the whole email that I got, unedited. As for its authenticity, I don't know. I can only go by the email address which seems quite real.

    I don't think there is anything for them to fear. Like I wrote, The Age's review on their place would get them many patrons already.

    I'm trying to find out where the line is for taking photos. Taking photos in public places is definitely ok, so the Sydney Opera House is fair game, John cannot object to that. As for a restaurant, it would seem that it is still ok to photograph it generally and the food. They can kick you out if they ask you not to take photos but the photos are still yours and you have copyright on them I think.

    ReplyDelete
  12. Oops, my apologies to Jorn, I'm just so used to typing John since I have so many friends named John.

    ReplyDelete
  13. Hey Thanh
    Interesting email... maybe you are a bigger fish than you think!
    Re: the offical looking email address doesn't impress me, I have a special address for my blog that I created very easily attached to an existing optusnet account.
    I seriously doubt this is real. Go on give them a call and find out!!! I'd LOVE to know.
    Jack

    ReplyDelete
  14. Jack, I don't think I'm that big a fish, probably just random.

    I guess it's not too hard to go and create an email, but why bother. What was the person who sent the emails motive?

    I don't think I will call them. If I don't get a reply email, then I can just drop the issue, but feel free to call on my behalf.

    ReplyDelete
  15. Hey thanh7580 - hmm, can't wait to see what happens in three days! Keep us posted.

    ReplyDelete
  16. Good on you! I would do that too if I were in your shoes; and for you to see the lighter side of it.. thats respect points from me!

    Let us food bloggers keep on doing what we do, within ethical limts of course, and not get bullied into backing away from presenting the truth.

    Its interesting, a few weeks ago, I just recreated Matt's kingfish pancetta for my blog.. and it tasted pretty good (If i may say so..).. perhaps I did it even better than him?! Haha

    Keep it up!

    ReplyDelete
  17. Mellie, I will keep everyone posted if something happens. But I suspect its been a wild goose chase for me.

    B&B, I found it extremely funny indeed at the ludicracy of it all. I definitely hope food bloggers can keep informing others of good and bad food without the threat of legal action every time.

    Before I went, I thought the Kingfish pancetta would be the highlight of the night, but it was rather bland. Maybe your version was better hahaha.

    I will keep blogging and giving my honest opinion.

    ReplyDelete
  18. Good on you for not being bullied, Thanh! From my experience working in intellectual property law, I'd say the bully has close to no legal leg to stand on, as your photos would constitute fair use... Keep us posted on any outcome of your investigation, but I agree about the negative Streisand Effect - if it is indeed the owner of Bar Lourinha emailing you then it'll certainly turn me off visiting or recommending it to friends!

    ReplyDelete
  19. Enchoing some of the above comments, good on you! I love reading 'real' reviews because I feel that I get a true opinion from a normal punter and that's why I blog about restaurants too.
    I have asked about taking photos at some places, like Tetsuya's, and you will find that most restaurants don't have a problem at all. This is great because I feel like they are proud of the food dishes they put out and are happy to get feedback. Unfortunately, not everyone wants to know that things may not be as great as some reviewers may portray...

    ReplyDelete
  20. Good on you!

    I think it's either someone with far too much time on their hands pulling a hoax (once you set up an account with an ISP you can add any email names to it, depending on how many mailboxes you have), or it really is the owner/chef, and he's an idiot.

    There is no law against you taking pictures of your food, nor writing up your opinion of the place. Even if it WAS a bad review, you can't be sued for defamation if it's the truth!

    Don't worry. And you know what? I was thinking I'd still give the place a go after reading your review. Until now.

    ReplyDelete
  21. As a Law graduate who studied copyright and other intellectual property rights, they're bullshitting you. They don't have copyright in a bloody dish - it doesn't fall in the statutory regime. Interestingly, last year my lecturer brought up a similar case of a chef 'copying' a dish and she concluded there was no breach of IP rights - so there definitely isn't in taking a photo!

    Mind you, it does rather make me decide never to eat there. Tossers!

    ReplyDelete
  22. Thanks everyone firstly for your support.

    Mutemonkey, seeing as your opinion is based on solid legal experience, I'm feeling even better now. I'll keep everyone posted should anything more occur. If this is not a hoax, it has certainly turned me off every going there again.

    Cin, we all love "real" reviews, hence we all read each others blogs for reviews and then go to the restaurants recommended by others. I would have thought that restaurants would be happy for the publicity, and if they know they serve quality food, what is there to hide?

    Anna, I know that you can setup many emails (my ISP give 4) but why bother. It really must be someone with too much time. But then why try to smear Bar Lourinha's reputation. And if its the chef, well that a totally different story. I really don't know what his motive would be.

    I think you should still go if you think the food is good. Even in my review, I still recommended people go, just that I didn't love it because it was really noisy and the food was ok only.

    Eat to Live, thanks for more legal opinion. Now I'm definite I have nothing to worry about.

    I think the chef your lecturer is referring to is Robin Wickens of Interlude. He was caught out for copying dishes from Alinea and WD-50 in the US. I actually wrote a post about it at the time which you can read here. But like you said, since you can't copyright dishes, he wasn't breaching any IP laws, just bad etiquette for not giving credit to the original creators.

    ReplyDelete
  23. Yes, it was indeed the Interlude case. You can read my lecturer's comments on her old blog.

    ReplyDelete
  24. Oooh, eat to live, I studied IP law with Kim Weatherall too! We may well know each other in real life :)

    Glad to hear you're reassured, Thanh!

    ReplyDelete
  25. mutemonkey: good lord - the teeny, tiny world that is Melbourne! *wave*

    ReplyDelete
  26. Eat to Live, thanks for the link, I'll have a read of it. I really like stuff about IP law (relating to real life issues) so I'm sure it will be a good read.

    Mutemonkey, I'm feeling much more assured and in the right now.

    Eat to Live and Mutemonkey, now I can say that this blog truly brings people together, even people who mihgt know each other in real life without knowing they know each other in real life previously (does that sound like confusing enough like law jargon?).

    ReplyDelete