Silbey (2019a)

From Copyright EVIDENCE

Advertising Architectural Publishing of books, periodicals and other publishing Programming and broadcasting Computer programming Computer consultancy Creative, arts and entertainment Cultural education

Film and motion pictures Sound recording and music publishing Photographic activities PR and communication Software publishing (including video games) Specialised design Television programmes Translation and interpretation

1. Relationship between protection (subject matter/term/scope) and supply/economic development/growth/welfare 2. Relationship between creative process and protection - what motivates creators (e.g. attribution; control; remuneration; time allocation)? 3. Harmony of interest assumption between authors and publishers (creators and producers/investors) 4. Effects of protection on industry structure (e.g. oligopolies; competition; economics of superstars; business models; technology adoption) 5. Understanding consumption/use (e.g. determinants of unlawful behaviour; user-generated content; social media)

A. Nature and Scope of exclusive rights (hyperlinking/browsing; reproduction right) B. Exceptions (distinguish innovation and public policy purposes; open-ended/closed list; commercial/non-commercial distinction) C. Mass digitisation/orphan works (non-use; extended collective licensing) D. Licensing and Business models (collecting societies; meta data; exchanges/hubs; windowing; crossborder availability) E. Fair remuneration (levies; copyright contracts) F. Enforcement (quantifying infringement; criminal sanctions; intermediary liability; graduated response; litigation and court data; commercial/non-commercial distinction; education and awareness)

Source Details

Silbey (2019a)
Title: Control over Contemporary Photography: A Tangle of Copyright, Right of Publicity, and the First Amendment
Author(s): Silbey, J.
Year: 2019
Citation: Silbey, J. (2019) Control over Contemporary Photography: A Tangle of Copyright, Right of Publicity, and the First Amendment. Columbia Journal of Law & the Arts, 42(3), pp. 351-364
Link(s): Open Access
Key Related Studies:
Discipline:
Linked by:
About the Data
Data Description: Data were obtained from interviews with 30 photographers, all ranging in age and expertise, and including an array of different genres of photography (including photojournalists, portrait photographers, fine art photographers etc.).
Data Type: Primary data
Secondary Data Sources:
Data Collection Methods:
Data Analysis Methods:
Industry(ies):
Country(ies):
Cross Country Study?: No
Comparative Study?: No
Literature review?: No
Government or policy study?: No
Time Period(s) of Collection:
  • 2017 - 2019
Funder(s):
  • Spangenberg Center for Law, Technology and the Arts at Case Western Reserve University

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.”

Main Results of the Study

The study finds three forms of photographer:
As Collaborator. Described as having ‘deep roots in copyright case law’, photographers view themselves as authors or ‘directors’ of the photograph. Even where photographs aim to capture an ‘authentic’ moment, photographers nonetheless are collaborative with their subjects, offering guidance and direction to them.
As Custodian. Photographers feel a strong sense of moral, righteous control over their works and the subjects within them. As such, they have little tolerance for unauthorised uses of their works where they are reused outwith their original context. However, this feeling is not necessarily reciprocated by photographers when it comes to obtaining consent from their subjects for subsequent, derivative uses.
As Citizen. Where there is a conflict between the wishes of the subject and photographer, photographers perceive themselves as having ‘ultimate control’ over the photograph by merit of the initial collaboration. This results in a ‘narrow view’ of the subject’s privacy, with a stricter vision of ongoing control than even copyright (e.g. under fair use) would oblige.

Policy Implications as Stated By Author

The study does not make any explicit policy recommendations.


Coverage of Study

Coverage of Fundamental Issues
Issue Included within Study
Relationship between protection (subject matter/term/scope) and supply/economic development/growth/welfare
Green-tick.png
Relationship between creative process and protection - what motivates creators (e.g. attribution; control; remuneration; time allocation)?
Harmony of interest assumption between authors and publishers (creators and producers/investors)
Effects of protection on industry structure (e.g. oligopolies; competition; economics of superstars; business models; technology adoption)
Understanding consumption/use (e.g. determinants of unlawful behaviour; user-generated content; social media)
Coverage of Evidence Based Policies
Issue Included within Study
Nature and Scope of exclusive rights (hyperlinking/browsing; reproduction right)
Green-tick.png
Exceptions (distinguish innovation and public policy purposes; open-ended/closed list; commercial/non-commercial distinction)
Green-tick.png
Mass digitisation/orphan works (non-use; extended collective licensing)
Licensing and Business models (collecting societies; meta data; exchanges/hubs; windowing; crossborder availability)
Fair remuneration (levies; copyright contracts)
Enforcement (quantifying infringement; criminal sanctions; intermediary liability; graduated response; litigation and court data; commercial/non-commercial distinction; education and awareness)

Datasets

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