Silbey, Subotnik and DiCola (2019)

Source Details

Silbey, Subotnik and DiCola (2019)
Title:	Existential Copyright and Professional Photography
Author(s):	Silbey, J., Subotnik, E. E., DiCola, P.
Year:	2019
Citation:	Sibley, J., Subotnik, E.E. and Dicola, P. (2019) Existential Copyright and Professional Photography. Notre Dame Law Review 95(1)
Link(s):	Open Access
Key Related Studies:	Abbott (1988) Subotnik (2011) Sibley (2015) Sibley (2019)
Discipline:	O34: Intellectual Property and Intellectual Capital
Linked by:	Silbey (2019a)

About the Data
Data Description:	Data were obtained through semi-structured interviews with 32 professional photographers (defined as ‘those who aim to make a living by selling their services and photo products’). Interview data was coded deductively through a human reading, and thereafter re-coded using the software system Atlas.ti.
Data Type:	Primary data
Secondary Data Sources:
Data Collection Methods:	Semi-Structured Interview
Data Analysis Methods:	Qualitative Coding / Sorting (e.g. of interview data)
Industry(ies):	Photographic activities
Country(ies):	United States
Cross Country Study?:	No
Comparative Study?:	No
Literature review?:	No
Government or policy study?:	No
Time Period(s) of Collection:	September 2016
Funder(s):	Spangenberg Center for Law, Technology and the Arts at Case Western Reserve University School of Law

Abstract

“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.”

Main Results of the Study

• Copyright plays an initial, rather than an ongoing, role in a photographer’s business. By withholding a complete copyright transfer, this offers photographer’s initial leverage to prevent clients from reusing or reselling photographs, as well as enabling a charge per requested use or selected print. Similarly, where clients request a copyright transfer, this offers the photographer a bargaining chip to charge a higher price. The study concludes that copyright is used as a demarcation of control and has symbolic value reflective of a certain status and expertise in the area of photography.

• Due to increased competition in the digital environment, photographer’s leverage in negotiating one-to-one contracts has waned. As such, photographer’s highlight their professional status and experience in order to distinguish themselves as bring worthy of higher prices.

• For the most part, policing unauthorised uses of photographs is not perceived as worthwhile by professional photographers. Instead, the most attractive revenue opportunities come in the form of books, fine art prints and stock photography.

Policy Implications as Stated By Author

The study does not offer 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
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)
Exceptions (distinguish innovation and public policy purposes; open-ended/closed list; commercial/non-commercial distinction)
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

Sample size:	32
Level of aggregation:	Photographers
Period of material under study:	2016