Monday, November 7, 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).


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”


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".


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".

Thursday, November 3, 2011

Admissibility of evidence of surrounding circumstances in interpreting contracts

The High Court has given unusually long reasons in rejecting an application for special leave to appeal in a case in which the Court was invited to reconsider its previous authority on the admissibility of evidence of surrounding circumstances as an aid in the interpretation of a contract.

The orthodox position, stated by Mason J in Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 at 352, is that "evidence of surrounding circumstances is admissible to assist in the interpretation of the contract if the language is ambiguous or susceptible of more than one meaning. But it is not admissible to contradict the language of the contract when it has a plain meaning. Generally speaking facts existing when the contract was made will not be receivable as part of the surrounding circumstances as an aid to construction, unless they were known to both parties, although, as we have seen, if the facts are notorious knowledge of them will be presumed."

That orthodox position was upheld by the NSW Court of Appeal in Jireh International Pty Ltd v Western Export Services Inc [2011] NSWCA 137, from which decision the application for special leave was brought.  In rejecting the application Gummow J (speaking also for Heydon and Bell JJ) said:

Justice Macfarlan gave the leading judgment in the Court of Appeal in this matter. In the passage in his reasons in which he found error in principle in the reasons of the primary judge, his Honour said:
A court is not justified in disregarding unambiguous language simply because the contract would have a more commercial and businesslike operation if an interpretation different to that dictated by the language were adopted.
His Honour added that the trial judge appeared:
to have acted on the basis that the provision would make more sense from a commercial point of view –
if it were construed as the trial judge did construe that provision. These statements by Justice Macfarlan since have been applied by the New South Wales Court of Appeal in Miwa Pty Ltd v Siantan Properties Pte Ltd [2011] NSWCA 297 at paragraph 18.

The primary judge had referred to what he described as “the summary of principles” in Franklins Pty Ltd v Metcash Trading Ltd [2009] NSWCA 407 at paragraphs 19 and following. The applicant in this Court refers to that decision and to MBF Investments Pty Ltd v Nolan [2011] VSCA 114 at paragraphs 195 to 204 as authority rejecting the requirement that it is essential to identify ambiguity in the language of the contract before the court may have regard to the surrounding circumstances and object of the transaction. The applicant also refers to statements in England said to be to the same effect, including Westminster City Council v The National Asylum Support Services [2002] UKHL 38; (2002) 1 WLR 2956 at 2958.

Acceptance of the applicant’s submission clearly would require reconsideration by this Court of what was said in Codelfa Construction Proprietary Limited v State Rail Authority of New South Wales [1982] HCA 24; (1982) 149 CLR 337 at 352 by Justice Mason, with the concurrence of Justices Stephen and Wilson. Until this Court embarks upon that exercise and disapproves or revises what was said in Codelfa, intermediate appellate courts are bound to follow that precedent. The same is true of primary judges, notwithstanding what may appear to have been said by intermediate appellate courts.

The position in Codelfa as a binding authority was made clear in the joint reasons of five Justices in Royal Botanic Gardens and Domain Trust v South Sydney City Council [2002] HCA 5; (2002) 240 CLR 45 at pages 62 to 63, paragraph 39 and it should not have been necessary to reiterate the point here.

We do not read anything said in this Court in Pacific Carriers Ltd v BNP Paribas [2004] HCA 35; (2004) 218 CLR 451 at 462, paragraph 22; Toll (FGCT) Pty Limited v Alphapharm Pty Limited [2004] HCA 52; (2004) 219 CLR 165, 179 paragraph 40; Wilkie v Gordian Runoff Limited [2005] HCA 17; (2005) 221 CLR 522 at 528 to 529, paragraph 15 and IATA v Ansett Australia Holdings Limited [2008] HCA 3; (2008) 234 CLR 151 at 160, paragraph 8 and at 174, paragraph 53 as operating inconsistently with what was said by Justice Mason in the passage in Codelfa to which we have referred.