Existential Copyright and Professional Photography

66 Pages Posted: 13 Dec 2019 Last revised: 17 Dec 2019

Date Written: 2019


Intellectual property law has intended benefits, but it also carries certain costs — deliberately so. Skeptics have asked: Why should intellectual property law exist at all? To get traction on that overly broad but still important inquiry, we decided to ask a new, preliminary question: What do creators in a particular industry actually use intellectual property for? In this first-of-its-kind study, we conducted thirty-two in-depth qualitative interviews of photographers about how copyright law functions within their creative and business practices. By learning the actual functions of copyright law on the ground, we can evaluate and contextualize existing theories of intellectual property. More importantly, our data call for an expansion of the set of possible justifications for intellectual property. Contrary to accepted wisdom, we find that copyright provides photographers with economic leverage in up-front negotiations with clients but not much benefit in anticopying protection afterwards. Beyond that, copyright also serves as part of photographers’ multifaceted sense of professionalism to protect the integrity of their art and business. Identifying these unrecognized and surprising functions of copyright in creators’ accounts is separate from evaluating their desirability. But we argue that the real-world functions of copyright are better candidates for justification and better subjects for policy discussion than chalkboard theories. In this way, our study of photographers moves the longstanding debate over intellectual property law’s purpose to a new and more informed place.

Keywords: intellectual property, copyright, contract, price discrimination, moral rights, professional regulation, empirical research, qualitative empirical research, photography, fake news, law and economics

Suggested Citation

Silbey, Jessica M. and Subotnik, Eva E. and DiCola, Peter C., Existential Copyright and Professional Photography (2019). 95 Notre Dame L. Rev. 263 (2019), Northeastern University School of Law Research Paper No. 362-2019, Northwestern Law & Econ Research Paper No. 19-09, St. John's Legal Studies Research Paper No. 19-0037, Available at SSRN: https://ssrn.com/abstract=3502816

Jessica M. Silbey (Contact Author)

Boston University - School of Law ( email )

765 Commonwealth Avenue
Boston, MA 02215
United States

Eva E. Subotnik

St. John's University School of Law ( email )

8000 Utopia Parkway
Jamaica, NY 11439
United States
718-990-3296 (Phone)

Peter C. DiCola

Northwestern University School of Law ( email )

375 E. Chicago Ave
Chicago, IL 60611
United States

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