Jacques Gastreaux

Taking Pictures In Restaurants

175 posts in this topic

Thoughts? Can a restaurant tell you that you can't take pictures of food that you've paid for? It's an interesting discussion I think.

From a technical legal standpoint, I think that a restaurateur can tell you not to take pictures in their establishment. But I don't think you would need their advance permission and any pictures you take before you are told not to take photographs should be OK. If they post a sign saying no picture taking allowd (like Fuddruckers does) then no photography is permitted and they can throw you out if you violate the policy. After all, it is their private property and they have the right to condition your entrance on any terms they like; by entering the restaurant, you agree to the terms (like opening a box of shrinkwrap software). I don't know if the restaurant has any rights to the likenesses of their dishes. Here is the definition of "copyright" from the copright act:

Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.

I don't know whether food is a work of authorship or whether a plate is a tangible medium of expression. Artwork and sculpture are protected by copyright. (And all of this is fodder for another thread) This issue of copyright goes to the question of whether you can "use" the pictures not whether you can take them.

But at the end of the day, why is Carole Greenwood so worried that pictures of something she cooked would show up on the Internet? Is she worried about imitation (I can see how imitation of the presentation might be a problem but not the taste)? Is she ashamed of the way her dishes look when the product is delivered to the customer? Or is this just another manifestation of her general reputation for orneriness?

My general feeling is that people take pictures of food only when they are impressed with the presentation, not when they think it looks like a plate of shit.

(and the fact that she had to reach down to Fredricksburg to find a lawyer to take the case could speak fo the possible strength of the case)

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Many fine dining establishments in this area do not allow cameras or camera phones. Most of them have apostrophes in their name (e. g. Joanna's, Archibald's, JP's, Louis Rogue's, Buck's, Ray's etc.) but that may be coincedental. It is a way to maintain and protect the artistic integrity of the work and the artists hard at work.

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My general feeling is that people take pictures of food only when they are impressed with the presentation, not when they think it  looks like a plate of shit.

Right. I generally only post pictures when I thought the food was good. And if I write something positive about the place and the pictures look like crap, I'll delete them because...well, who's gonna believe me that the food is good if the photos don't back it up.

Thanks for the legal summary too.

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Many fine dining establishments in this area do not allow cameras or camera phones.  Most of them have apostrophes in their name (e. g. Joanna's, Archibald's, JP's, Louis Rogue's, Buck's, Ray's etc.) but that may be coincedental.  It is a way to maintain and protect the artistic integrity of the work and the artists hard at work.

Good Guys'

PS: that stuff in the letter about damages and attorney's fees is a crock. She would have to proove damages (speculative here) and with regard to attorney's fees, we do not have the English system here where the looser pays the winner's attorneys' fees. However, if the work had been registered with the copyright office, then they would not have to prove damages (they could get statutory damages) and they would be entitled to attorneys' fees. However, I doubt that Carole has taken the trouble to register her dishes with the copyright office for in order to do so, she would have to send her food to the government.

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Good Guys'

PS: that stuff in the letter about damages and attorney's fees is a crock.  She would have to proove damages (speculative here) and with regard to attorney's fees, we do not have the English system here where the looser pays the winner's attorneys' fees.  However, if the work had been registered with the copyright office, then they would not have to prove damages (they could get statutory damages) and they would be entitled to attorneys' fees.  However, I doubt that Carole has taken the trouble to register her dishes with the copyright office for in order to do so, she would have to send her food to the government.

And wouldn't she have to send them a blue steak, a rare steak, an MR steak, a medium steak, a medium-well steak, and a well-done steak? How can you show copyright unless every instance of the dish is exactly the same? So if the wine changes in the wine sauce and it doesn't taste exactly the same, there's no copyright attached, etc etc.

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I think that, in the case of Greenwood v. DC Foodie, Greenwood would have to take the position that the presentation of the food is copyrightable, not the food itself. Can a food's presentation be considered art?

It's an interesting question. I'd bet some chefs would be loathe to say no.

Whether legally defensible or not, it was a stupid, stupid business move to assert such a silly right -- especially when Greenwood apparently was, at best, unclear about the rules governing photography in her restaurant (which she is, of course, free to set). The internet has a way of magnifying and propagating ill will.

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Wow some things are much clearer now.

Hasn't Chef Greenwood always been a bit of an eccentric character? (Don I don't want to break any rules here so please delete this if you see fit) I really don't know much about her food, but I have heard/read a few stories about her little quirks.

I never went to Buck's because of the previous stories about her, I am sure if someone digs enough they will find them on another website, or maybe a newspaper/magazine article.

It seems like she is definately a back of the house person and shouldn't venture up front that often, as it costs her much business.

Edited by RaisaB

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Can a food's presentation be considered art?

I think this misses the mark. Of course food presentation is "art." But is it art that is protected by copyright? Is it a work of authorship that has been fixed in a tangible medium of expression? After all, each iteration of the same dish would be considered a separate and distinct work, assuming the conditions for copyright protection exist. This really needs a separate thread.

And, and, the owner of the copyright contols the right to create what are known as "derivative works." For instance, only Ian Fleming can write another James Bond novel unless he or his estate grants the subsequent author permission (for a price, of course). And copyright only lasts for so long. One could argue that "food on a plate" was the initial work and the copyright on that expired eons ago, so there is no copyright protection for derivative works. (Keep in mind that I am only a tax laywer and am stepping outside my field of expertise, but I do know a "little bit" about copyright, and we are getting close to exhausting it))

And I agree that it was a stupid move from a business standpoint to have a lawyer send that letter which could be posted on the Internet. We should stage a "pix in" at Buck's where we all bring digital cameras and start taking pictures of our food.

Now I see Michael's point, I understand what the "buck's" is in Buck's Fishing and Camping." I did not notice the apostrophe before Michael pointed it out. Buck's is one of those "establishments" that I have yet to visit. I expect the highest quality in terms of the artistic expression that is going on there.

Edited by Jacques Gastreaux

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I think this misses the mark.  Of course food presentation is "art."  But is it art that is protected by copyright?  Is it a work of authorship that has been fixed in a tangible medium of expression?  After all, each iteration of the same dish would be considered a separate and distinct work, assuming the conditions for copyright protection exist.

Perhaps I used the word "art" too loosely -- though I can't offhand think of something widely considered art that is not copyrightable. As for the food example, copyright doesn't require duplicatability. A painter who paints ten nearly identical images of the same landscape has created ten copyrightable expressions, and a photograph of any one of them could violate the copyright that attaches to that image.

I can't think of any good reason why foodstuffs would not be considered a tangible medium of expression. Art needn't be permanent to be copyrightable.

(For the record, because I may be in over my head, I am a lawyer who took an art law class in law school, but I'm not presently anything resembling a copyright lawyer.)

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The funny thing (ok, a funny thing) is that while Greenwood sees herself not just an "artist in the kitchen," but a "fine artist" -- I believe she considered leaving cooking for a fine arts career just before opening Buck's and that it was a real option for her -- her presentations are hardly unique or artitistic in the way that makes (usually) magazine covers or goes onto the table at CitiZen. A rilled snapper. A grilled steak. You'd be hard-pressed to pick one of her dinners out of a line-up a week after you ate it.

The one time she did make a magaize cover -- The Post Magazine's Dining Guide issue -- they showed her iconic wedge of iceberg lettuce with blue cheese and bacon. You know, the one they served at every Holiday Inn steakhouse in America when you were growing up.

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Perhaps I used the word "art" too loosely -- though I can't offhand think of something widely considered art that is not copyrightable. 

I doubt that the work of "performance artists" is copyrightable. There is no fixation in a tangible medium of expression. But is that "widely considered art.? According to Michael, there appears to be "performance art" going on at "Buck's."

Edited by Jacques Gastreaux

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"Artist" begins with the letter "A." For some reason, there's another word that begins with the letter "A" that comes to mind when I think about this.

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"Artist" begins with the letter "A." For some reason, there's another word that begins with the letter "A" that comes to mind when I think about this.

She's a Cook; not an Artist.

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"Artist" begins with the letter "A."  For some reason, there's another word that begins with the letter "A" that comes to mind when I think about this.

Albondiga?

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Like Jacques, I have never eaten at Buck's and this whole episode seems to speak directly to Michael Landrum's point (on the no-show thread) about some restaurants causing anxiety and intimidation to potential clients. With so many restaurants here in which I haven't yet eaten, my inclination to go to Buck's is just about nil.

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Without going into the specifics of the situation, because I do not know the exact law of DC on the topic, I am willing to bet that a restaurant owner has the right to stop the publication of photos taken of food in her restaurant under the right of publicity. There is an exception under the 1st Am. of that little document on display at the Archives for news purposes but bloggers tend to not want to be journalists so the exception wouldn't apply. And even if you are a journalist I think there are limits as to what "news" is.

Years ago it was pretty common for photographers to take pictures of inanimate objects for all kinds of purposes, including art, without getting the permission of the owner of the inanimate object. Now, it is recognized that obtaining the consent of the owner of the owner of the inanimate object is required and avoids potentially expensive litigation.

Have you ever read the back of a ticket for a game at the MCI Center or any other venue. You should. Not only do you release the owner of the venue and teams from liability for most injuries as you have "assumed the risk" that you can get hit by an errant basketball, baseball and the occassional bat. You also grant the venue (as copyright owner) a license to your image for use on the jumbotron and broadcast on television.

And, yes performance artists have the exclusive rights provided under the copyright act.

Edited by NCPinDC

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Without going into the specifics of the situation, because I do not know the exact law of DC on the topic, I am willing to bet that a restaurant owner has the right to stop the publication of photos taken of food in her restaurant under the right of publicity.  There is an exception under the 1st Am. of that little document on display at the Archives for news purposes but bloggers tend to not want to be journalists so the exception wouldn't apply.  And even if you are a journalist I think there are limits as to what "news" is.

Wait, so is a restaurant review not news? And here I had been reading them in newspapers and assuming they were. Or is it only news when it's in a paper or on television? And as there are many so-called "traditional" print journalists with blogs, is their stuff only news if it's published in their regular gig?

Right of publicity or not, Chef Greenwood seems to go out of her way to make people feel unwelcome, or at least pissed-off. Just one reason why Buck's never crosses my mind when considering places to go in the city.

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Like Jacques, I have never eaten at Buck's and this whole episode seems to speak directly to Michael Landrum's point (on the no-show thread) about some restaurants causing anxiety and intimidation to potential clients.  With so many restaurants here in which I haven't yet eaten, my inclination to go to Buck's is just about nil.

[Let me briefly chime in as moderator: as much as I don't like seeing Buck's getting raked over the coals, this is pretty clearly a fair topic for discussion although it may merit a separate thread at some point because it raises larger issues.]

And now as a regular old poster: I was actually there that night (!), briefly, before needing to dart out after about two minutes to tend to some unexpected business. I don't know Carole, having only met her once (see top post in this thread), but James is a good egg, and Jamie & Company behind the bar have always been friendly and welcoming.

Don't blame me I'm only the piano player. Carry on...

Rocks.

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Wow.  I think chefs are artists.  Harsh.

Disagreement here, although perhaps chefs like Michel Richard, or Fabio Trabocci have claims to being artists.

The chef as artist is hindered by what the same issue that Mario Batali brought up on the Today Show: "When you think about it, all my greatest work is poop, tomorrow."

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Yes, restaurant reviews in a news outlet would be considered news. However, I believe news outlets have to have the consent of a restaurant that is subject to a feature. That is, if I am writing for the Post and write a review of Iota, it is news. However, if I want to write a feature on music venues that have good food and want to highlight the chef and crew at Iota, I have to get permission. NOTE: I am not a First Amendment lawyer or expert, nor am I offering any legal advice on this or any other topic.

Whatever you think of a shop owner's personality, they have the right to control how and when images of their goods are distributed and displayed.

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Disagreement here, although perhaps chefs like Michel Richard, or Fabio Trabocci have claims to being artists.

The chef as artist is hindered by what the same issue that Mario Batali brought up on the Today Show:  "When you think about it, all my greatest work is poop, tomorrow."

Oh jeez, soda up the nose :)

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Here's the thing guys. I don't really care if a restaurant doesn't want me taking pictures of their food. I'll admit that the pictures I take aren't always the most flattering.

It's the way that this was handled that's the problem here. I mean, if someone had asked me nicely not to post the pictures online and given an explanation then I wouldn't have given it a second thought. Michael Landrum's post earlier would have been enough of an explanation for me.

But no one said I couldn't take pictures. All that happened was that Carole said I needed to have her permission to use them at the end of the meal and it was done rudely. After that, James came over to smooth things over and told us we didn't have to pay attention to Carole. Then the next day I got the cease and desist letter.

I don't need my ego stroked -- I just expect to be treated with respect when I'm paying $140 for dinner at a place.

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There are a plethora of ironies on this thread right now but I'll only comment on one:

if Greenwood had stayed in the back of the house it sounds like Buck's would have recieved a nice bit of free, positive publicity on dcfoodie's blog.

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Legal issues and definitions of art aside, to me this boils down to tact. There are tactful ways to deal with people in life that win you more admirers than enemies. Cease and desist letters are typically used to intimidate and bully. I think it’s pretty ridiculous to have a lawyer draw up a letter just because you don’t want photos of your food on a blog. A civilized conversation about why you might not want someone taking pictures in your restaurant and a polite explanation of why any previously taken photos shouldn’t be used could have prevented this whole thing (as Jason explains above). I think the whole thing is embarrassing for the restaurant.

But to nitpick the legal issues, wouldn’t he have had to post the photos to have something to “cease” doing? The speed with which they slapped that letter on him is just bizarre…

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