IP Law Daily, COPYRIGHT—S.D. Fla.: Stolen scenes from an Italian restaurant might get chain owner in trouble, (Apr 21, 2023)

By Matthew Hersh, J.D.

The fact that the restaurant chain posted the purloined work only on its in-store menu did not save it from a lawsuit.

The fact that an online aggregator and food delivery company allegedly reposted to its website a photo from a restaurant chain’s in-store menu did not make that company an indispensable party in a lawsuit against the restaurant chain for copyright infringement, the federal court for Miami has held. The court, in refusing to dismiss a lawsuit against the restaurant chain based on its alleged theft of the menu photo, found that it did not matter that the copyright owner did not name the online aggregator as a defendant because the restaurant chain’s alleged conduct—even though it used the work only for in-store menus and not online—was enough to constitute copyright infringement (Prepared Food Photos, Inc. v. DelVecchio Pizza, LLC, April 18, 2023, Bloom, B.).

The lawsuit involves a somewhat tangled web between three separate entities. Prepared Food Photos is an online provided of stock images of food photos. (It also has a reputation, whether or not deserved, of being an aggressive copyright litigator in the State of Florida.) Zomato is an Indian restaurant aggregator and food delivery service, along the lines of Yelp or DoorDash. Zomato operated in several cities in the United States for several years, including Miami, but has recently withdrawn from all markets except India and the UAE. Caught in the middle of these two is DelVecchio’s Pizzeria, a South Florida pizzeria and Italian restaurant chain.

The stock images food company sued the restaurant for copyright infringement, alleging that it used on its in-store menu a purloined photograph entitled “ChickenParmesan020.” The restaurant moved to dismiss, leading to this opinion.

Statute of limitations. The court easily rejected the motion to dismiss. The statute of limitations argument required little discussion. The photo agency acknowledged in its complaint that the restaurant was using the work as far back as 2016. But the photo agency also asserted that it did not discover the infringement until 2022. Since the discovery rule applied in copyright infringement cases, the court observed, the agency’s assertion was enough to state a valid claim.

Failure to join. The court also found that the case could proceed against the restaurant alone. Under federal rules, an absent party is considered necessary if, among other things, it might impair an existing party’s ability to protect its interests in the litigation. The restaurant claimed that since it only put the photo onto its in-store menu, the copyright infringement didn’t happen until the restaurant aggregator took its own photo of that menu and posted it on the internet. But that wasn’t right, the court held, because the Copyright Act “does not require publication/display on the internet for a claim to exist.” Thus, the claim against the restaurant could stand or fall on its own.

The Case is No. 0:23-cv-60183-BB.

Attorneys: Daniel DeSouza (Desouza Law, PA) for Prepared Food Photos, Inc., f/k/a Adlife Marketing & Communications Co., Inc. Lydia B. Cannizzo (Cannizzo & Chamberlin, PA) for DelVecchio Pizza, LLC, d/b/a DelVecchio’S Pizzeria.

Companies: Prepared Food Photos, Inc., f/k/a Adlife Marketing & Communications Co., Inc.; DelVecchio Pizza, LLC, d/b/a DelVecchio’S Pizzeria

Cases: Copyright TechnologyInternet FloridaNews