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(Question has been slightly modified to maintain anonymity)
We have been digitizing restaurant, hotel and other menus from our historical menu collection and have been following standard copyright protocols – but also making many case-by-case decisions based on things like whether of the establishment still exists, etc. (With only a couple exceptions I made for a faculty member who had permission of the restaurant owners, I haven’t scanned any menus from after 2000.) Our public collection site is used by students and researchers around the world.
My question is: can we scan and put online menus dated after 1977 (and especially more recent – up until 2021) if it is for educational purposes? If we do scan them, would we need permissions from every single chef/owner? The copyright status of menus in general has always seemed murky to me, but I don’t even know where to go to find clear answers for this situation.
Answer:
Menus can be works of art.[1]
"Art" of course, is a subjective term, and has no precise, stand-along definition in copyright law.[2] So more importantly for this discussion, a "menu" can be a composition of such originality and substance, that it is protected by copyright law.
This protection can be for the work as a whole (the entire menu), and/or it can be for individual elements in the work. It can cover stand-alone elements (such as a cover photo image or flavor text[3] used to describe a signature dish), and, in these days of Slice and Grubhub and Yelp, it can be for the menu as a physical object, or a version published only online. It can cover the original art in a trademarked logo, whether that art was generated by an independent contractor or employee.
Recent case law illustrates how these protections can be sliced-and-diced, and also shows just how nasty litigation over restaurant copyrights and trademarks can be.[4] Menus and the logos and information they carry can be the apex of a restaurant's brand, reputation, and intellectual property. So the member is right to take this concern seriously.
With care, however, the act of creating an online archive of carefully curated restaurant menus, for well-articulated academic purposes, should be able to find protection in the line of "fair use" case law building on the 2nd Circuit's 2015 decision in Authors Guild v. Google,[5] which relates to the creation of online repositories.[6]
As the Court found in that case: The purpose of the copying [to create the online resource] is highly transformative, the public display of text is limited, and the revelations do not provide a significant market substitute for the protected aspects of the originals.
The key to scanning and incorporating menus still under copyright protection into an archival database of menus at a library or educational institution, while taking advantage of the fair use defense set forth in Authors Guild, is to do so in a manner that:
- Yields an asset that is useful beyond the mere replication of a single menu;
- Ensures the archive will not enable use of its images in place of a copyright-protected original text or image; and
- Uses an array of professionally developed standards to confirm and assert the academic and/or cultural value of the archive as a whole, and the inclusion of a particular work in that archive.
There are numerous techniques to achieve this.
First and foremost, the purpose of the archive should be developed and set forth on the archive in clear, well-developed terms. The database should not look like a group of menus simply gathered together by a person who happens to have made a collection of his favorite restaurants.[7] The cultural value and purpose of the collection should be stated in very certain terms, and consistently repeated throughout the archive's pages, cataloging text, and metadata.
Second, the function of the archive should be such that users can demonstrably benefit from the aggregated content and information. For instance, menus should be searchable by geographic region, type of food, notable characteristics, and other relevant factors...giving the aggregated content value beyond what is created by each individual entry.[8]
Third, the archive should adopt a standard approach to assessing and depicting the authorship, ownership, and copyright status of archived works.[9]
Fourth, the images themselves should be created so that a third party using the image cannot create a credible replica of the menu or the original originating restaurant's logo or copyright-protected content. A picture taken with a border, or the use of a watermark indicating that the image is part of the archive are some common ways to do this; technology creates many other and evolving options.
Fifth, since it will help mitigate damage in the event a copyright owner simply refuses to believe an archive has made a "fair use" of their content, the overall approach of the collection should be assessed using your institution's fair use assessment form, and that record should be kept. Why is that? Being able to demonstrate a good-faith effort to establish that the use is fair can help mitigate damages, and can be a deterrent to a plaintiff pursuing a lawsuit all the way to a verdict.
Sixth, the "Terms and Conditions" of your online archive should feature a process for owners to report good-faith suspicion of copyright infringement, and your institution should have a registered agent as provided by the DMCA. An example of this type of statement can be found in the DPLA's Terms and Conditions as of April 15, 2021: https://dp.la/about/terms-conditions. [10]
Seventh, if you haven't, consider the benefits of registering an agent under the DMCA, and if it's a good move for your institution, register (you can look up and see if your institution already has an agent here: https://www.copyright.gov/dmca-directory/).
And finally, to the extent possible, for steps five, six, and seven, work with your institution's attorney, who can connect all these steps and the academic activity they support with your institution's insurance and risk tolerance.[11]
So, with all that as background, here are my answers to the questions:
Can we scan and put online menus dated after 1977 (and especially more recent – up until 2021) if it is for educational purposes?
Answer: Yes, copyright-protected materials can be duplicated if the use is fair; by following the cautions above, an institution can set itself up to both create a highly useful and important archive, to claim fair use, and to mitigate damages in the event of a worst-case scenario.
If we do scan them, would we need permissions from every single chef/owner?
Answer: if the use is fair, there is no need for permission...and in fact, asking for it could be introduced by a plaintiff as an admission that you concluded you needed permission.
Now, a word of caution on this: if your archive is part of a larger institution, the other departments of that larger institution need to be alerted that just because an image is on your archive, that doesn't mean they can use it for a catalog cover, a web site image, or a poster advertising your institution. After all, a use that is "fair" for an academic archive might not be so "fair" if it is on a brochure for a program or event (even if the program or event is not subject to a charge). This is especially true since menus will often feature not only copyright-protected material, but trademarks (which, unlike copyrights, do not expire if they are in continuous use).
The copyright status of menus in general has always seemed murky to me, but I don’t even know where to go to find clear answers for this situation.
Because the menus themselves can be protected by copyright--as well as the individual elements in the menus--that "murkiness" is here to stay. Unless a menu is clearly in the public domain, it is best to assume that it--or some part of it--is subject to copyright, and remember that a restaurant's name and logo are its intellectual property, too. The reason an archival initiative can make this assumption, and still hope to achieve its objective, is because by carefully and deliberately assembling those individually protected elements, they are creating a broader work with value beyond each individual element.
The value of a collection of menus is likely obvious to librarians, academics, and information managers. But just as an example of how valuable such a resource can be, even outside the field of scholarship, I'll share a personal anecdote: while working on a case for a neighborhood fighting a fast food drive-thru in their dense, urban neighborhood, I used the New York Public Library's digital collection to find a menu for the "Little Harlem Hotel" in Buffalo NY. The menu was part of the research we used to make the case that the neighborhood has a history worth fighting for.
We lost the case,[12] but that menu helped create a vivid argument about the history of the neighborhood and its vibrant legacy, and that argument was energized by the archive. An online archive of menus can be important in countless ways; finding the right legal recipe to make it happen is worth it.
Thank you for a great question.
[1] If you are skeptical about "menus as art," check out the menu here, and tell me if the rooster doesn't convince you that he could be in a museum.
[2] "Visual art" does, and of course "art" as a general term is used regularly in copyright jurisprudence. But "art" remains a subjective term.
[3] Yep, that's a "flavor text" pun. Yum.
[4] The 2019 case Khan v Addy's BBQ LLC, (419 F Supp 3d 538), involving former business partners operating BBQ joints in Tea Neck, NJ, and Elmont, NY, shows just how convoluted these things can get. Another case from 2018, 784 8th St. Corp. v Ruggiero, 2018 US Dist LEXIS 5405 shows how copyright ownership to logos and menus can change based on who did the work; also, it shows that if you are in business with family, it is important to have a good lawyer!
[5] Authors Guild v Google, Inc., 804 F3d 202. The Supreme Court denied a chance to review this case, leaving the 2nd Circuit's decision intact.
[6] The database created by Google in the Authors Guild case was not a straightforward online archive like the one described by the member here. However, the case is still applicable in several important ways.
[7] I know a professional archivist would not do this, but this is a very important distinction.
[8] Other "relevant factors" of which I, a food philistine living in the city that invented Buffalo Wings, and originally from the city that invented Chicken Riggies and Half-Moon cookies, am shamefully unaware.
[9] The approach of the Digital Public Library of America ("DPLA") happens to be my favorite, seen here in this document about the Erie Canal, but is not the only standard out there. What's important is that the institution identified a system that works for it--and then consistently uses that system.
[10] It would be deeply ironic if the DPLA sent me a "cease and desist" for linking to their excellent resources.
[11] Since every archive or library has a different structure and different approach, while inspiration can be drawn from fellow institutions, the final approach and policies should be reviewed by a lawyer for your institution whenever possible. As just a threshold issue, state-affiliated institutions have different risk considerations than independent not-for-profits.
[12] It hurt to lose, but the damage to the neighborhood hurt more.
Tag:
Archives, Copyright, Digitization and Copyright, Fair Use, Special collections
