Control over Contemporary Photography: A Tangle of Copyright, Right of Publicity, and the First Amendment

15 Pages Posted: 17 Apr 2019

Date Written: April 17, 2019

Abstract

Professional photographers who make photographs of people negotiate a tense relationship between their own creative freedoms and the right of their subjects to control their images. This negotiation formally takes place over the terrain of copyright, right of publicity, and the First Amendment. Informally, photographers describe implied understandings and practice norms guiding their relationship with subjects, infrequently memorialized in short, boilerplate contractual releases. This short essay explores these formal and informal practices described by contemporary professional photographers. Although the evidence for this essay comes from professional photographic practice culled from interviews with contemporary photographers, the analysis of the evidence speaks to the more general challenge of balancing privacy and freedom of expression in the digital age.

At the outset of this essay, I describe the scope of the empirical project and the process of collecting data. Then, in three parts, I describe how photographers simultaneously collaborate with and control the subjects of the photographs they make in order to assert themselves as civic storytellers with broad free speech rights in our digital age. I identify a conflict between photographers and their subjects, which serves to maximize the aesthetic freedom of photographers at the expense of their subjects. This conflict resolves in the photographers’ accounts through their caretaking role over their photographs on behalf of the subjects themselves. I conclude with a brief explanation of why it matters to better understand these professional photographic norms in our Internet age when free speech and privacy are increasingly in conflict.

Keywords: copyright, intellectual property, right of publicity, first amendment, contract, empirical methods, ethnography, qualitative methods, legal norms, photography, digital, internet, privacy, law and humanities, law and culture

Suggested Citation

Silbey, Jessica M., Control over Contemporary Photography: A Tangle of Copyright, Right of Publicity, and the First Amendment (April 17, 2019). Columbia Journal of Law & the Arts, Vol. 42, No. 3, pp. 351-364 (2019), Northeastern University School of Law Research Paper No. 348-2019, Available at SSRN: https://ssrn.com/abstract=3374017

Jessica M. Silbey (Contact Author)

Boston University - School of Law ( email )

765 Commonwealth Avenue
Boston, MA 02215
United States

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