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The Courts Your Rights Online Idle

Germany Says Taking Photos Of Food Infringes The Chef's Copyright 280

xPertCodert writes: According to this article in Der Welt (Google translate from German), in Germany if you take a picture of a dish in a restaurant without prior permission, you are violating chef's copyright for his creation and can be liable to pay a hefty fine. If this approach to foodporn will become universal, what will we put in our Instagrams? Techdirt reports: "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."
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Germany Says Taking Photos Of Food Infringes The Chef's Copyright

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  • by Anonymous Coward

    Why would they sue in the first place? and miss out on free publicity

    • by Chrisq ( 894406 ) on Friday August 21, 2015 @03:17AM (#50359903)

      Why would they sue in the first place? and miss out on free publicity

      It's probably the pictures of their less attractive dishes they are worried about. The "look, this chicken was served to me at XXXX and it's still raw inside" posts you see on facebook.

      • by thesupraman ( 179040 ) on Friday August 21, 2015 @04:41AM (#50360169)

        So just move the food around a bit.. It is now your own creative work.. And take your photo.
        The chicken is cut open? That was you.. Not the chef.

        Send like a non story.. Could only be applied for a picture of an untouched plate..

        • by Anonymous Coward on Friday August 21, 2015 @05:27AM (#50360271)

          Sounds like a derivative work to me.

          • Actually, my first thought was...Isn't this more a "work for hire"?

            I mean, you order the dish for your consumption (physically)...the copyright (if there is any which there should NOT be)...should be yours since it is a work for hire and you OWN it when you get served.

            • In most cases, work for hire requires that there be a contract in place, signing away the rights of the content creator to the entity hiring them. No such contract exists in a typical culinary setting, unless you're suggesting it's implied, which I would suspect would be a difficult thing to argue.

              Disclaimer (in case it wasn't already obvious): IANAL.

              • by Dunbal ( 464142 ) *
                There is a contract. It's called the restaurant bill.
                • A bill is not a contract. A bill is the result of a contract. It's clear that there is an implied contract between restaurants and their patrons, hence why they can drop a bill in your lap at the end of the meal even though they may not post prices in their menus or place notices around the establishment that you'll need to pay for your food once the meal is done. But suggesting that the implied contract extends into work-for-hire concepts seems a bit far-fetched to me.

                  Which isn't to suggest that this law m

                  • A bill is not a contract. A bill is the result of a contract. It's clear that there is an implied contract between restaurants and their patrons, hence why they can drop a bill in your lap at the end of the meal even though they may not post prices in their menus or place notices around the establishment that you'll need to pay for your food once the meal is done. But suggesting that the implied contract extends into work-for-hire concepts seems a bit far-fetched to me.

                    I think it *is* a work for hire. T

      • Thank you for adhering to my trademark subject line campaign!
    • by gnupun ( 752725 )

      What if a competing chef sees the photo and duplicates the dish? Don't you think the chef should have protection for his IP?

      • by Sloppy ( 14984 )

        Yeah, what incentive will chefs have to put food on plates, if the government takes away their God-granted monopoly, so that other chefs will then be able to do the same thing? Getting paid for the meal by the diners?! Pfffft!

      • Don't know about Germany specifically but in other places a recipe can't be protected, other than keeping it secret (like Coca Cola). In that case anyone can buy it, taste it, and attempt to replicate it.

        That's different to the specific wording of a recipe in a book - that's covered by copyright.

        • In the USA, a recipe can't be covered by copyright because it's a collection of facts and directions, but theoretically it can be patented as a process and/or composition of matter. It's very difficult to get a recipe past prior art and obviousness, but it is considered patentable subject matter.
      • And obviously chefs need to have their food creations copyrighted for 95 years otherwise they'll have no incentive to cook more food!

        Next up: Does moving the food around (such as when you eat the food) create a derivative work? If so, eating the food is a violation of the chef's copyright and you should just stare at the food until the waiter brings it back to the kitchen.

  • by SillyBrit ( 3401921 ) on Friday August 21, 2015 @03:11AM (#50359879)
    Move the items on the plate around a bit, then it becomes your own work or a derrivative work.
    • by wonkey_monkey ( 2592601 ) on Friday August 21, 2015 @03:13AM (#50359887) Homepage

      a derrivative work

      I had a later stage of the process in mind, but sure, that works too.

    • ...which requires permission from the original artist.

      One more thing the lawyers already took care of.

      • Arrangement of say 5 elements on a given surface is finite (unless you want to go into args like "these fries 3mm apart instead of 1 and facing 2 o'clock instead of 3"). Lets assume that number was 5, then only 5 people in the whole world would be entitled to the copyright on a first-come basis. What about the billion other Jackson Pollocks who stumble on 1 of the 5 arrangements by accident? This is an insane ruling and should be appealed.
        • by cdrudge ( 68377 )

          Arrangement of say 5 elements on a given surface is finite (unless you want to go into args like "these fries 3mm apart instead of 1 and facing 2 o'clock instead of 3").

          You can't just ignore positioning details though. Would you say a copyright for a written work only includes just the order of letters without regard to spacing and punctuation? For for a musical work just the sequence of notes and not duration of notes, pauses, and timbre?

      • The chef gives explicit permission to move the food around when they put a fork, knife, spoon, or chopsticks next to it.
  • by Chrisq ( 894406 ) on Friday August 21, 2015 @03:14AM (#50359895)
    So we can't take a picture in a restaurant if it shows the food because of the chef's copyright. There are already moves to say that you cannot take photographs in a street without the building's architect's permission [dailymail.co.uk]. What next - photograps of people wearing clothes infringing the designer's permission? Soon we will only be able to take photographs of people in the nude in a wilderness (not farmland, the farmer's neatly trimmed hedgerows, fences, and dry-stone walls hold a copyright too).
    • Basically, no photos will be allowed in a German restaurant because food might be in the photos.

      If I owned a restaurant in Germany, I would post a sign, "Photos Allowed."
      • So no photo's of sour crout? Win Win as far as I'm concerned
    • Soon we will only be able to take photographs of people in the nude in a wilderness

      As long as you don't get sued by their hairstylist for taking pictures that show their hairstyle.

    • If you take a photo with the lens cap on, you're violating the copyright of the camera designer.
      • by Chrisq ( 894406 )

        If you take a photo with the lens cap on, you're violating the copyright of the camera designer.

        Blackboard makers would then claim prior art

    • by gsslay ( 807818 )

      This won't happen because unenforceable and ridiculous laws naturally fall into disrepute, and either become ignored or removed. As long as photograph and video technology continues on its path of being common place, recording-by-default, undetectable and unintrusive, these laws have no chance.

      You can't stop someone photography/videoing/recording when you can't tell if they're doing it, and everyone is doing it all the time anyway.

    • by henni16 ( 586412 )

      Don't mix taking pictures with distributing them.
      I'm pretty sure the German case was about distributing pictures, not taking them.

      • What's the point of taking them if not to share them?

        • Re: (Score:3, Funny)

          by Anonymous Coward

          To capture their soul and keep it imprisoned on the photograph.

    • by houghi ( 78078 )

      You make it sound like a bad thing.I see taking a picture as a privilege, not a right.
      I also think that robot.txt should hold the include, not the exclude.

      I do know that I am almost alone in these ideas and that it will never happen. Not because of companies, but because people do not understand what privacy is.

      To me public means everything that is not private and that means it can include things in public places.
      Many others (especially in the US) think that private means everything that is not public.

      So fo

  • good. (Score:5, Insightful)

    by Anonymous Coward on Friday August 21, 2015 @03:17AM (#50359905)

    Anything exposing the ridiculousness of copyright is welcome.

    As a kid, I thought "that's my idea!" was childish playground talk. As a student, I learned that publishing and sharing was key to advancing science and culture. In the commercial world, I felt I was back in the playground.

    Still, the new rule here will be that you know a restaurant is bad when nobody is allowed to photo the food.

  • by savuporo ( 658486 ) on Friday August 21, 2015 @03:22AM (#50359929)

    I mean, everyone is fed up with the constant flood of instagrams and faceblogfucks of the burritos or squirrels you had for lunch today. German ingenuity just figured out the way to cull the flood. Copyright for the common cause !

  • So what happens when one chef happens to arrange the vegies the same way as another? Or if, when prosecuted for photography, we can find prior art?

    Or, heaven forbid, someone else cooks something that *tastes* the same.

    These new laws will definitely inspire culinary innovation. You can expect to see a large investment in producing culinary IP as a result!

    • by dwywit ( 1109409 )

      How does this apply to restaurant reviewers who would like to compare, say, one chef's idea of vegetables with that of another chef.

      "I'm a food blogger, this photograph is fair use blah blah blah review, criticism, etc"

  • by tlambert ( 566799 ) on Friday August 21, 2015 @03:39AM (#50359971)

    A: Officer, why am I being arrested?
    O: For crapping in the street.
    A: But I didn't!
    O: I have a picture of it right here.
    A: Sorry, but that's a piece of performance art, and you are in violation of my copyright; delete the picture now!
    O: OK. ...

    Probably not the way things would go, even in Germany.

    • by quenda ( 644621 )

      I'm asserting copyright on my car's image (due to my tasteful decoration with bumper stickers and "My Family" stick-figures).
      Next time I pass a speed camera, the police department will be counter-sued.

    • ... and in any case (as others have pointed out) your creation is just a derivative work of the chef where you ate yesterday evening...
    • by GuB-42 ( 2483988 )

      It may also be considered derived work and in violation of the last meal Chef's copyright.

  • Or, how about open source food? How can I know if the restaurant puts malicious components in the food? I can't, unless I can see the original precise recipe and audit it before ordering anything. Also, I must be able to trust the packager (the cook) to not slip anything nasty in.
    • Good point. I've sometimes thought of using that analogy in reverse, to advocate open source software: using closed source is like eating food with unknown ingredients. This might not work for the average joe eating at McD, but there are plenty of food-conscious hipsters around who might get it.

      OT: I feel a bit paranoid about your sig... is it my ISP inserting ads there?

  • That statements simplifies the legal situation. The example was concerning high-level restaurants where the food presentation might reach a level of art that could be protected. You won't get hammered for taking a shot of your burger at McDonalds ;-).

    Even with high-level restaurants, while there may be a policy which asks you not to take photos, no lawsuit has been initiated yet. So this is a very theoretical discussion.

    And all of this has to be tested in court....

  • And what about the napkin arrangement? Many hours go into studying origami.

    Finally someone takes action! The proprietors of Imbiss [wikipedia.org] will be delighted. EUR 3 for a Bratwurst and a mere EUR 99 for the right to take a picture of the grub. Picture of the way the plastic container is presented? Prices start at EUR 250. Power to the chippies [wikipedia.org]!

  • by Aethedor ( 973725 ) on Friday August 21, 2015 @04:05AM (#50360049) Homepage
    This is insane! What's next? Being sued by an architect for a photo of a building? By a webdesigner for a screenshot? By a cars manufacturer for a photo of one of their cars? By parents for a photo of their child? By god for any photo you make?
    • Architectural works are already copyright restricted in many countries. (I use the word restricted rather than protected consciously as the latter is a lie.)
      Even the lighting of them can be photorestricted. Snap the Eiffel tower in the daytime, no problem: Gustav has been dead much longer than Walt. Snap it at night and that's a different matter.

    • This is insane! What's next? Being sued by an architect for a photo of a building?

      That is already the case. Though if the building is on public display (and buildings often are), then non commercial photos are allowed, but they may restrict licensing rights for post-cards, t-shirts and all the other tourist crap.

    • by PhilHibbs ( 4537 )

      This is insane! What's next? Being sued by an architect for a photo of a building?

      Yep. [dailymail.co.uk]

  • by dunkelfalke ( 91624 ) on Friday August 21, 2015 @04:28AM (#50360133)

    I have read TFA (and no, I am most certainly not new here) and it is full of hypothetical blah blah. Basically, some lawyer thinks that when the food has been artistically arranged, one has to ask the chef first before making photos, or one possibly might receive a cease-and-desist letter if the chef sees the photo and is in the mood for writing one. Never happened so far but maybe possibly might happen some day. Also can happen if the eating place owner generally doesn't allow taking photos.

  • by hattig ( 47930 ) on Friday August 21, 2015 @05:01AM (#50360215) Journal

    The food was cooked to order on behalf of the customer. There is an implied transfer of ownership and all rights from the restaurant (or chef) to the customer, hence the customer is allowed to destroy the chef's work without being sued.

    If the chef wanted to retain artistic copyright of his work, then he should have got the customer to sign a contract.

    • by henni16 ( 586412 ) on Friday August 21, 2015 @07:16AM (#50360565)
      Not that it matters because the entire discussion is purely theoretical, but copyright works slightly different in Germany. AFAIK as a creator you always retain the copyright, you can only sell / license (distribution) rights-
      • What? Germany follows the goblin rules of ownership? The goblin law: Maker always owns the creation, muggles and wizards who pay get a lifetime use license and the habit of wizards to pass goblin made objects from person to person without paying license fees to the goblin maker is considered a grave violation of goblin rights.
    • by gnupun ( 752725 )

      The food was cooked to order on behalf of the customer. There is an implied transfer of ownership and all rights from the restaurant (or chef) to the customer, hence the customer is allowed to destroy the chef's work without being sued.

      LOL, just because you order a dish, does not mean you are the new owner of its recipe, its presentation etc. You just have the right to eat and enjoy it, that's all. There is no other "transfer of ownership" of trade secrets and design of the dish.

      • How can you possibly contend that there is a trade secret revealed by the visible aspect of an advertised item? This is just a picture of an event that is occurring in public.
        • by gnupun ( 752725 )

          And brick-and-mortar bookstores allow you to read books that are on sale. Are you saying it's legal and okay I take photos with smartphone of all the useful pages of a book while I'm in the bookstore? Your "occurring in public" is not a good enough excuse.

          A customer or competitor can replicate the recipe more easily if he took the photo than if he did not.

          Bottom line: the product is on sale for consumption, but its trade and design secrets are not available for sale unless you pay a hefty fee and license th

          • If true, this would prevent all photography that could potentially include an image of all or part of a product, on the grounds that it could help someone duplicate the product. It's true that a photograph might help, but we don't accept that argument for any other class of objects [cars, buildings, the RonCo Inside-The-Eggshell-Egg-Scrambler, GMO wheat], and there's no reason to think that cooking is somehow special.

            Also, I believe that once you begin talking about imitating manufacturing process, you're
    • Now that raises an interesting debate: When you go to the restaurant are you purchasing a service or a product? And does that change if you order from a menu vs being one of the fussy customize everything types?

  • You can't take pictures of the food simply because you are in the owners property and must follow their rules.

    • So this wouldn't apply to the sample food items displayed, for example, at sushi restaurants. These items are often visible from the street. What if I stand on the sidewalk and take a picture of the food served at an outdoor cafe?
  • by Kjella ( 173770 ) on Friday August 21, 2015 @05:18AM (#50360241) Homepage

    After digging a bit (I read German) the basis for this foodscare is related to a "birthday train" lawsuit, in which the court found that the design elements could be copyrighted as a work of art despite its functional elements as a toy train, like a sculpture. Basically it gave "functional art" (angewandten Kunst) more of the same protections as "non-functional art" (zweckfreien Kunst). So while you won't get sued for making a hot dog, copying someone's fancy and unique cake design might land you in trouble.

    None of this will have any effect on making food pictures on social media, any more than you'll get in trouble for making a photo of a copyrighted statue. It does open up quite a few cans of worms since anything reasonably unique you create might get a quasi-design patent lasting life+70, so it's a IPR minefield for everything from furniture designers to hair dressers, but the photographers don't have much to worry about. Nobody's actually been sued over food photos and it's unlikely anyone will.

  • by Behrooz Amoozad ( 2831361 ) on Friday August 21, 2015 @05:24AM (#50360257)
    There is this old story about this guy [wikipedia.org] who paid for the smell of kebab with sound of coins.
    I'll give the chef a picture of my money.
  • by ruir ( 2709173 ) on Friday August 21, 2015 @05:53AM (#50360355)
    also infringes the copyright of my wallet. Problem solved.
  • by Dunbal ( 464142 ) * on Friday August 21, 2015 @06:02AM (#50360379)
    Extending this logically - if someone takes a photograph of you smiling, your dentist can sue you for copyright infringement if you have any fillings that are visible in the picture. Well done, Germany. Only the English would have no fear.
  • Extrapolating (Score:4, Informative)

    by GrumpySteen ( 1250194 ) on Friday August 21, 2015 @07:20AM (#50360575)

    I'm not familiar with German copyright law, but there are precedents in other countries that allow artists to use copyright on art that they've sold to prevent its destruction.

    If Germany grants similar rights under copyright law, that would mean that the chef could not only prevent photos from being taken, but could refuse to let the diner eat the food or even move it around on the plate since it's now copyrighted.

  • Wouldn't this be a work for hire, since you're paying for it and it's being prepared to order?

  • by Primate Pete ( 2773471 ) on Friday August 21, 2015 @08:28AM (#50360831)
    So if the meal is IP owned by the chef, and not transferred to me when I purchase it, then I suppose the chef has to take it back when I'm done with it....
  • I know that the Slashdot crowd (including myself) is largely peopled by native English speakers. I would even hazard that, being mostly Americans, the Slashdot crowd is majority monolingual (I have learned four others, but wouldn't consider myself fluent).

    However, being haughtily, disdainfully monolinguial is no excuse for messing up the name of the news organization you are linking to:

    According this article in Der Welt [www.welt.de] (Google translate from German [google.com]), ...

    It is "Die Welt", not "Der Welt." For heaven'

    • Actually, "in der Welt" makes perfect sense in German, meaning simply "in the world". The feminine definite article "die" becomes "der" when used with the preposition "in" for this meaning.

      Of course, we're using "Die Welt" as the name of the publication, and "in" in the English sense, so the parent point still stands.

  • This makes no sense. If a chef can make every plate look identical and weight exactly the same based on precise quality control specifications, then they can claim copyright by filing a picture of their food and technical specs to obtain a legal copyright. It's just stupid otherwise. Cooking is an art, not a science. A "pinch" is not a technically precise measurement.
    • "Cooking is an art"

      That's *exactly* why presentation is copyrightable. It's not the science part, but the art and skill used to assemble the individualized work. You can't reproduce a photo of a painting, or a photo of a sculpture, or (in some cases) even a building. Why would you think food is any different?

      [note: (c) is out of control, but the arguments on the face of it are valid - even if the underlying premise is bad]

  • wanna claim that as well?

  • Taking pictures of people infringes on the implicit copyright by their parents on that gene sequence which created that phenotype. You need to not just blur out the faces but the entire Chef, all of the German nuts in government, etc. Wouldn't want to upset their parents.

    • It's already been determined that individuals cannot copyright or patent genes, only Monsanto is allowed to do that.

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