Subotnik Presents at Plenary at IP Scholars Conference

Last week, Professor Eva Subotnik presented her work-in-progress on the evolving nature of photography as a profession in the digital age, co-authored with Professor Jessica Silbey, of Northeastern University School of Law, and Professor Peter DiCola, of Northwestern University Pritzker School of Law, at the closing plenary panel of this year’s IP Scholars Conference (IPSC) at Cardozo School of Law.


Eva Subotnik

Here is an abstract of their project:

Empirical Study of Photographic Copyright and Changing Aesthetic and Business Practices in the Digital Age

Through various empirical methods (both qualitative and quantitative), we are investigating the business and art of photography as it has evolved with digital technology. The goals of the project are to learn how earning a living as a photographer (or through photography) and the practice of photography have changed in the age of internet distribution and e-commerce, fast evolving digital photographic equipment, and the accompanying changes to culture, aesthetics and the market. In particular, we are interested in the roles intellectual property law plays in the changing (or enduring) aspects of photography as a professional and artistic endeavor.

We received a seed grant from the Spangenberg Center for Law, Technology & the Arts at Case Western Reserve University School of Law to fund the preliminary collection of data via long-form interviews with photographers and their business partners. So far, we have conducted multiple interviews each approximately 90 minutes long, and we have done some preliminary coding and analysis of those interviews. We anticipate conducting at least twenty-five (25) interviews before beginning the quantitative work. We plan to eventually run a survey based on the qualitative analysis of the interviews to test some of the relevant variables and distinctions that emerge from the interviews. At IPSC 2017, we hope to present the structure of this project and its theoretical and empirical framework as well as a preliminary analysis of the interview data to date. We anticipate receiving constructive feedback from colleagues about the future shape and direction for this project.

Several theoretical frames inform our questions and methods. First, from prior empirical work in intellectual property, we understand that a “one size fits all” model of IP protection is inaccurate as a matter of doctrine and practice. Variations in IP-rich industries dictate diverse uses and needs for IP law – some uses are different but complementary and others contradict and undermine one another. Second, we understand that the copy, distribution and display functions have merged in our digital age (and have become cheaper and easier to accomplish) despite IP statutes that distinguish them in critical ways (e.g., via the first sale doctrine). This presents particularized problems and solutions in certain fields (photography, music, software) but not in others (sculpture, applied and industrial art, biotechnology). Third, business models for creative and innovative endeavors (be they start-ups or large firms) are rapidly evolving with platform technology and information distribution networks. These changing business models are worth close study for the ways they may be altering the creative environment for photographers specifically (and as models for creative actors more generally), which in turn may affect how the copyright system is perceived, employed and enforced.


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