Is Taking a Photo of a Menu at a Restaurant Against the Rules?

Recently, a Zaxby's manager told a customer that they shouldn't be taking a picture of the menu. This sparked some debate on whether or not taking a photo of a menu is allowed, especially since many businesses are updating their policies to cater to digital natives. It's important to understand the legal and ethical considerations behind such actions.

What Happened at Zaxby's?

One Zaxby's manager expressed concern that a customer was taking a photo of the menu. Her argument was that a competitor could potentially replicate the menu. However, as a general manager, you would never be upset over someone taking a picture of the menu, especially since it's available online. Zaxby's and other chain restaurants operate on the assumption that people will want to know about their menus and may even showcase them to their friends and followers online.

Related Concerns at Other Businesses

At a Subway, which is combined with a gas station and grocery store, a manager was concerned about customers taking photos inside the building. The manager was worried that people might try to take pictures of things like prices and layouts to replicate them in their own place. While this is a valid concern, the fear that competitors might try to copy and compete by imitation is somewhat justified based on some industry reports. However, the manager's reasoning was based on a different perspective. After all, a customer might even share a photo online if a manager forbids them from doing so.

As a GM, asking a customer to not take photos of the menu conflicts with the company's goals of showcasing and promoting their offerings. It also goes against the general idea of sharing personal experiences and preferences through social media. If a manager were to tell you not to take a photo, you might share it online, and the corporate PR/social media team would likely take notice. This could have negative consequences for the manager in question.

Legal Perspective on Menu Photography

From a legal standpoint, taking a photo of a menu does not necessarily infringe on copyright. Fair use is a legal doctrine that promotes freedom of expression by permitting unlicensed use of copyrighted works, such as a menu, in certain circumstances. The Copyright Act protects a variety of works, but the fair use provision provides flexibility in its application.

Fair Use Statutory Framework

1. Purpose and Character of the Use: Whether it is a commercial use or for nonprofit educational purposes. Courts are more likely to find nonprofit educational and noncommercial uses as fair, but not all are considered fair. Transformative uses, which add something new and have a different character, are more likely to be considered fair. 2. Nature of the Copyrighted Work: Using a more creative or imaginative work is less likely to support a claim of a fair use than a factual work. Use of an unpublished work is less likely to be considered fair than a published one. 3. Amount and Substantiality of the Portion Used: Both the quantity and quality of the copyrighted material that was used. A large portion of a work is less likely to be considered fair, but using an entire work might be fair under certain circumstances. A small amount of a work still might not be fair if the selection is the "heart" of the work. 4. Effect of the Use upon the Potential Market: This factor considers whether the use is hurting the existing or future market for the work. If it is displacing sales or could cause substantial harm, it is less likely to be fair.

The Copyright Office cannot provide specific legal advice. Therefore, it's important to understand that fair use is determined on a case-by-case basis. There is no formula to ensure a predetermined percentage or amount can be used without permission.

Conclusion

In essence, taking a photo of a restaurant menu might be permissible under fair use, especially if the purpose is noncommercial and transformative. However, as businesses clarify their policies concerning customer photography, it's essential to strike a balance between freedom of expression and respect for proprietary information.