|Title:||Control over Contemporary Photography: A Tangle of Copyright, Right of Publicity, and the First Amendment|
|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|
|Key Related Studies:|
|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:|
|Cross Country Study?:||No|
|Government or policy study?:||No|
|Time Period(s) of Collection:||
“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