Professor Eva Subotnik presented her paper, Copyright in Sharp Focus: An Empirical Study of Professional Photographers, co-authored with Professor Jessica Silbey (Northeastern) and Professor Peter DiCola (Northwestern), at the Third Copyright Scholarship Roundtable, held on June 8-9, 2018 at the University of Pennsylvania Law School, Philadelphia, PA.
The Roundtable is designed to be a forum for the discussion of current copyright scholarship, covering a range of methodologies, topics, and perspectives. Nine papers were chosen for discussion at the Roundtable this year.
Here’s an abstract of the paper:
Photography is among the activities most profoundly changed by digitization, mobile computing, and internet connectivity. Polaroids and photo albums have given way. Many people now enjoy the ability to take thousands of high-resolution images with their smartphone, store even more in the cloud, and share them on social media. Specialized equipment and national marketing reach are more widely accessible. Like many other creative professionals today, photographers who seek to make a living from their art are feeling pressure in the new landscape. As professional photographers have experienced these technological shifts, have they adapted their business models, their creative practices, or both? What role does the law, especially copyright law, play in how professional photographers make money and how they make photographs?
To study the working situations of professional photographers, we have conducted twenty-six interviews with individuals working in various genres and at different career stages. In this Article we explain how professional photographers approach the digital, miniaturized, and networked environment by detailing one of their most basic business decisions: pricing their services. We find that our interviewees rely heavily on an initial negotiation with clients. They rely much less on sales to other businesses, organizations, or consumers in the secondary market for photographs. As a result, we see copyright law’s primary economic function for professional photographers as supporting the creator’s bargaining power in an up-front negotiation before the images are created. This stands in contrast to a model of copyright as an anti-piracy tool. Additionally, we have observed that copyright law serves critical non-economic functions—such as maintaining image quality, subject integrity, and the photographer’s reputation—each of which relates to a core notion of professionalism. These findings suggest a path forward for copyright law focused less on preventing copying and more on facilitating bargaining leverage and professional integrity, both of which are relevant to photography’s role as the dominant communicative medium in the twenty-first century. This Article, then, is a study of law as social-economic regulation in the context of rapidly changing technology and the networked marketplace.
