07 November 2011

Law for Food Bloggers

As a result of Direct Messages I received via Twitter in the weeks preceding EatDrinkBlog2011 I have decided to speak about the legal aspects of three issues facing foodbloggers:

  • a food blogger's right to take photographs of dishes in a restaurant, and whether or not a food blogger is entitled to include in those photos images of people, such as other patrons or staff;
  • copyright in those photos;
  • copyright in recipes.

What follows is obviously a very brief summary of the legal position, hopefully shorn of technical language so that it may be understood by non-lawyers (and as a consequence not expressed in a way that intellectual property lawyers would necessarily accept as technically correct).

YOUR RIGHT TO TAKE PHOTOGRAPHS

Like many things in the law, there is a common sense answer and a strict legal answer, and they may not necessarily be the same, but there will usually be a fair bit of overlap between they two.

Let's start with the strict legal position.

In general terms in Australia, you are allowed to take photographs of whomever you like, or whatever you like, whenever you like.  You do not generally need permission to do so, and in particular you do not need the permission of a person you wish to photograph.  There is no general right to privacy that protects people from being photographed.

There are some obvious limitations to this.

There are now anti-voyeurism laws, or peeping-tom laws that prevent the taking of photos of a sexual or voyeuristic nature, usually of what are quaintly referred to as "private parts".  And as Bill Henson notoriously discovered a few years ago, taking photographs of children, especially where they are sexualised, or at least arguably so, is always fraught with difficulty.

The most important limitation on a photographer's right to take photographs however comes not from laws relating to privacy or deviant behaviour, but from the law of property.

When you enter upon private property, whether it be a restaurant or cafe or a supermarket or shopping centre, you enter on the common law understanding that you comply with requirements the property owner imposes upon you.  And in general, those requirements can be imposed upon you after you have entered, as a condition of thereafter remaining on the property.

The general proposition that you have a right to take photographs wherever you want to, is subject to the very important qualification for food bloggers that the owner of private land is perfectly entitled to ask you not to, and is perfectly entitled to ask you to leave if you continue to do so.  And they are perfectly entitled to use such force as is reasonably necessary to force you to leave if you refuse to comply with the conditions they have imposed.

They are also perfectly entitled to limit what you photograph, or what you subsequently do with the photograph.  So, they could ask you not to photograph patrons or staff.  Or they could ask you not to put your photographs onto a blog, or sell them to a commercial photo bank.  Of course, the enforcement of these conditions after you have left is another matter entirely, but they are entitled to impose the conditions and get your agreement to them as a condition of you remaining.

There is nothing to stop you from taking photos of the premises (and of the inside of the premises) from off the premises in a public place such as the footpath.

I should I finally mention that a common yet misconceived way people sometimes try and prevent you from taking a photograph is to say that doing so will breach someone's copyright.  There is no copyright in a snow egg. And while there may be copyright in the snow egg recipe (as we will discover below), taking a photograph of the snow egg does not infringe the copyright in that recipe.

What about taking photographs of people?

As indicated earlier, there is no general right to privacy and so generally there is no need to ask someone's permission to take their photograph.  That is of course subject to what has been said about a property owner's entitlement to restrict you from taking photos of patrons or staff as a condition of entry to, or remaining on, the property.

But, you may in limited circumstances be prevented from using photographs taken of people without their consent.

In practical terms this is generally going to apply only to famous people or people with a reputation worth protecting. And it is by a tortured legal path where the Courts can prevent the use of a person's image where the image is used in order to endorse a product or website.  Examples of where this occurs are now legion in the food world with celebrity endorsements of particular foodstuffs (eg swimming’s association with Uncle Toby's) or celebrity food endorsements of supermarkets (eg Margaret Fulton and Woolworths).

But unless there is a commercial use of someone's image to endorse a product, and unless that person has some element of celebrity or notoriety about them, then it is extremely unlikely that there could be any restriction placed on the use of a photograph taken of them.

A more detailed discussion of photographer’s rights is available in the excellent web article entitled “NSW Photo Rights”

COPYRIGHT IN PHOTOGRAPHS

A photograph is, in the language of the Commonwealth Copyright Act, an "artistic work" and the photographer is therefore given certain exclusive rights in respect of that photograph.

The most important right is of course the right to copy and to publish and to use that photograph.  And so, where you take a photograph and put it up on your blog to accompany a story, or include it as part of a photo gallery if you are a food photographer, you have the right to control how it is used.

There are also important moral rights that are attached to a photograph.  So a photographer has the right to be attributed as the creator of the photographer, and can take action to prevent the image being distorted in a way prejudicial to your reputation.

In general it is an infringement of your copyright if someone else does any of the things that you have the exclusive right to do. So if they copy it (which would include scanning a hard copy and posting it, or downloading it an re-posting it) without your permission that would be an infringement. They don't have to copy the whole of the photograph. So long as they copy an important, distinctive or recognisable part of the photograph that is sufficient.

Copyright is not infringed by someone copying your set-up and independently taking their own photograph.  It is only the reproduction of the photograph, not the idea for the photograph, that is protected.

There is a "fair dealing" defence that entitles a person to reproduce a copyrighted work for the purposes of criticism or review if there is a sufficient acknowledgement of the work.  This probably means you would not infringe copyright by publishing a copy of the cover of a cookbook to accompany a review of a cookbook.

More information can be obtained from the infosheet available from the Australian Copyright Council entitled "Photographers and copyright".

COPYRIGHT IN RECIPES

The good news is a recipe is capable of protection by similar copyright laws that protect photographs. The bad news is that the protection is fairly limited, and unless there is blatant plagiarism of the words used, it will be difficult to establish a breach of the copyright.

Copyright will only protect the written form of a recipe, but does not protect the dish itself.

So, for example, the inventor of a new dish cannot prevent people from making the dish, nor can they prevent people from writing their own description of how to make it.  Everyone of you is perfectly entitled to go away and write down how to make anything you get taught in a master class and you won't be infringing anyone's copyright in doing so.

Of course once someone has committed the recipe for a dish to writing, then that written form is protected by copyright.  But it is still the writing that is protected, and not the dish itself. So again, you don't infringe copyright by making the dish from the recipe, nor by publishing your own description of how to make the recipe.

An important limitation on the protection afforded by copyright is that it does not protect ideas.  So the idea of using blue cheese to make ice-cream cannot be protected. 

It also does not protect bare information such as, importantly for food bloggers, the list of ingredients and quantities used to make a particular cake. It is a common misconception that you can avoid infringing copyright in a recipe by merely changing a ingredient or a quantity.  This is misconceived for two reasons.  The first is that ingredients and quantities are not protected by copyright in the first place.  The second is that even if they were, the mere changing of one or two quantities would not protect you from infringement.  You infringe copyright where you reproduce a substantial part of a work (in this case the wording of the recipe) and so it may not be sufficient to simply change a few words here or there.

What is protected by copyright is not the method or technique used, but the expression of that method or technique in written words.

More information can be obtained from the infosheet produced by the Australian Copyright Council entitled "Recipes: Legal Protection".

23 March 2011

Food hygiene: name and shame




Last night I was dining at a Japanese restaurant when the guy behind the counter wiped his nose with his hands...both of them, then wiped his chopsticks with his fingers before using both the chopsticks and his hands to plate the food.  That got me thinking about hygiene, and the regulation of food safety.

My dining companion then reminded me that Bill Granger's iconic Darlinghurst restaurant received a penalty notice for having a broken thermometer in one of its fridges (there was no suggestion that there was anything wrong with the fridge itself).  As a result, the penalty notice was subsequently listed on the NSW Food Authority's website (the website is officially titled the "Register of Penalty Notices", but the "What's New" section of the website proudly describes it as "Name and Shame").

This got me thinking: the justification often given for such naming and shaming is that it provides consumers with information by which they can make an informed choice about where they source their food.  However, that seems spurious.  

If the relevant offence is significant enough that it could rationally affect a consumer's food-purchasing decision, then surely it should be shut down as a risk to public safety until remedial action is taken.  If it could not rationally-affect that decision (of which the Bill's broken thermometer is a good example) then what is the utility of naming (and shaming) them to begin with?  On the one hand it is an insufficient response to the risk, and on the other hand it is a gratuitous slur occasioned by a technical breach of food safety standards, readily remedied and which did not in the particular case create a risk of harm.

For what it is worth, having been exposed to the publicity at the time, it appears that Bill's is no longer listed on the Register of Penalty Notices.  I don't know why that is, although there is a section that allows the NSW Food Authority to remove information about a particular penalty notice from the Register "if it is satisfied it is appropriate in the circumstances"...whatever that means.  One wonders, if it was appropriate to remove it, why was it appropriate to have the information on the register in the first place?

10 December 2010

Tetsuya - Recipe Index by Ingredient

Following on from my previous post, an index by ingredient to Damien Pignolet's "Salades", I have undertaken a similar exercise in relation to Tetsuya Wakada's "Testsuya".

Two things surprised me about this book when I first decided I was going to spend a whole day preparing an 8-course degustation for 6 people, for a 30th birthday I was catering.  First, although some of the ingredients took a little time to track down, that was largely because I had no idea where I was looking, but after spending an hour in the IGA in Chinatown, Sydney I had finally located where everything was. To my surprise, they are things that I have used again and again.  Secondly, this is a surprisingly simple and practical set of recipes.


In any event, here is the index to the recipes, listed according to certain staple pantry ingredients.


Banyuls Vinegar

  • Carpaccio of Snapper with Banyuls Dressing (page 22)
  • Sashimi of Hamachi with Blood Orange and Ginger Vinaigrette (page 38)
  • Tian of Marinated Scampi with Pawpaw, Cucumber and Tonburi (page 40)
  • Tartare of Marinated Scampi with Tomato and Pepper Sorbet (page 46)
  • Salad of Blood Orange, Beetroot and Rhubarb (page 68)
  • Roasted Scampi Seasoned with Tea and Scampi Oil (page 98)
  • Warm Salad of Veal Sweetbreads with King Prawns (page 102)


Konbu

  • Confit of Petuna Ocean Trout with Fennel Salad (page 56)
  • Roasted Quail Breast with Gobo and Black Truffle (page 126)
  • Venison with Roasted Eschallots and Morels (page 140)
  • Braised Oxtail with Sea Cucumber and Vegetables (page 146)
  • Braised Pig's Cheek with Gobo (page 150)
  • Double-Cooked Deboned Spatchcock with Bread Sauce (page 152)


Mirin

  • Cold Soup of Potato and Leek with Jellied Eggplant (page 14)
  • Marinated Whiting with Umeboshi (page 26)
  • Marinated Trevally with Preserved Lemon (page 34)
  • Seared Tuna with Apple and Olive (page 36)
  • Salad of Sea Scallops with Asparagus and Beans (page 42)
  • Cuttlefish Noodles with Quail Egg (page 50)
  • Tartare of Tuna with Goat's Cheese (page 52)
  • Salad of Tataki Bonito with Garlic Chips and Shiso (page 60)
  • Tataki of Ostrich with Truffled Peaches (page 66)
  • Seasonal Garden Greens with Soy and Balsamic Vinaigrette (page 70)
  • Angelhair Pasta with Scampi and Scampi Oil (page 74)
  • Angelhair Pasta with Asparagus and Truffle Oil (page 78)
  • Linguine with a Ragout of Oriental Mushrooms (page 80)
  • Sauteed Cuttlefish with Soba (page 88)
  • Steamed Abalone with Witlof and Peaches (page 92)
  • Steamed Snapper with Celeriac Mousse (page 96)
  • Roasted Lobster with Braised Oxtail (page 108)
  • Roasted Duck Breast with Confit Potato and Duck Jus (page 112)
  • Grilled Breast of Duck with Apple and Ginger Dipping Sauce (page 116)
  • Duck Terrine (page 118)
  • Roasted Squab with Buckwheat, Shimeji and Shiitake (page 120)
  • Seared Swordfish with Artichoke and Olive (page 124)
  • Roasted Quail Breast with Gobo and Black Truffle (page 126)
  • Quail Legs with Ginger and Five-Spice Powder (page 128)
  • Slow-Roasted Rack of Lamb with Miso and Blue Cheese (page 130)
  • Venison with Roasted Eschallots and Morels (page 140)
  • Sushi of Seared Veal with Soy and Mirin Glaze (page 156)


Rice Wine Vinegar

  • Tasmanian Pacific Oysters with Rice Wine Vinaigrette (page 20)
  • Carpaccio of Snapper with Banyuls Dressing (page 22)
  • Lobster Ravioli with Tomato and Basil Vinaigrette (page 72)
  • Slow-Roasted Rouget with Buckwheat Vinaigrette (page 100)
  • Grilled Breast of Duck with Apple and Ginger Dipping Sauce (page 116)


Scampi Oil


  • Angelhair Pasta with Scampi and Scampi Oil (page 74)
  • Roasted Scampi Seasoned with Tea and Scampi Oil (page 98)


Wakame

  • Marinated Whiting with Umeboshi (page 26)
  • Lobster Ravioli with Tomato and Basil Vinaigrette (page 72)
  • Steamed Snapper with Celeriac Mousse (page 96)
  • Roasted Scampi Seasoned with Tea and Scampi Oil (page 98)
  • Warm Salad of Veal Sweetbreads with King Prawns (page 102)
  • Roasted Barramundi with Bitter Greens and Truffled Peaches (page 106)
  • Roasted Lobster with Braised Oxtail (page 108)
  • Seared Swordfish with Artichoke and Olive (page 124)
  • Grilled Fillet of Veal with Wasabi and Sea Urchin Butter (page 136)


Walnut Oil


  • Tartare of Marinated Scampi with Tomato and Pepper Sorbet (page 46)
  • Tartare of Marinated Scampi with Tomato and Pepper Sorbet (page 46)
  • Salad of Blood Orange, Beetroot and Rhubarb (page 68)
  • Warm Salad of Veal Sweetbreads with King Prawns (page 102)


White Sesame Oil

  • Carpaccio of Snapper with Banyuls Dressing (page 22)
  • Seared Tuna with Apple and Olive (page 36)
  • Steamed Abalone with Witlof and Peaches (page 92)
  • Sushi of Seared Veal with Soy and Mirin Glaze (page 156)

30 November 2010

Damien Pignolet's "Salades" by Ingredient

For someone whose favourite cookbooks include "The River Cottage Meat Book" by Hugh Fearnley-Whittingstall, "Cooking on the Bone" by Jennifer McLagan, and "Nose to Tail Eating" by Fergus Henderson, a book entirely devoted to salads was a challenge. I had thoroughly enjoyed Damien Pignolet's "French", however, and so when he released "Salades" it was time to take up the challenge.

The first challenge was ingredients, and specifically ingredients for the wide variety of vinaigrettes described in the book. My larder had never had any need for pistachio oil, banyuls, mostarda di frutta (mustard fruits, or fruit candied in sugar and honey syrup flavoured with mustard oil) or the esoteric vinaigre de cidre aux algues, échalotes et à la fleur de sel (cider, seaweed, eschalot & fleur de sel vinegar). While Cornwell's cider vinegar was perfectly fine for making Stephanie Alexander's peach chutney, it seemed inadequate as the main ingredient of a delicate vinaigrette.

My first task in meeting the "Salades" challenge, therefore, was the purchase of some top-quality oils, vinegars, mustards and other ingredients that I had not previously had on hand.  Two things occurred during that process that prompted this post: first, I spent hundreds of dollars; secondly, by dint of my poor memory and even poorer record-keeping I ended up with 2 litres of verjuice.  A thought bubble said "I need to find the recipes that use verjuice", and it occurred to me that in place of "verjuice" in that thought bubble one could insert the name of any expensive ingredient of which only small quantities would be used in any particular recipe.

And so I have set out below an index to the recipes in "Salades" by reference to various staple ingredients.

[NB:  Perhaps arbitrarily, I have not included olive oil, peanut oil, grapeseed oil or (non-aged) balsamic vinegar, simply because they have sufficient uses as a staple to not warrant my attention in this list.  Equally arbitrarily, I have included mustards despite the fact that they probably have sufficient uses elsewhere.  I have included under Aged Red and Aged White vinegar those recipes that also call for simply red wine or white wine vinegar, as they seem to me sufficiently interchangeable that you could substitute in the aged variety without difficulty.  I have not included under Aged Balsamic vinegar those recipes calling simply for balsamic vinegar as they seem to me to be sufficiently different as to not be interchangeable.]