Subotnik’s Article to Be Published in the Notre Dame Law Review

Professor Eva Subotnik’s article, Existential Copyright and Professional Photography, co-authored with Professor Jessica Silbey (Northeastern) and Professor Peter DiCola (Northwestern), will be published in the Notre Dame Law Review.  Their article is a qualitative study of how professional photographers conceptualize and make use of copyright as part of their business models and in other ways, too.

Eva Subotnik

Here is the abstract:

Intellectual property law has intended benefits, but it also carries certain costs—by design. 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 32 in-depth, qualitative interviews of photographers about how 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 allow us to expand the set of possible justifications for intellectual property. Contrary to accepted wisdom, we find that copyright provides photographers with economic leverage in upfront negotiations with clients but not much benefit in anti-copying protection afterwards. Beyond that, copyright also serves as part of photographers’ multifaceted sense of professionalism to protect the integrity of their art and business. Evaluating the desirability of these unrecognized and surprising functions of copyright is separate from identifying them in creators’ accounts. 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 long-standing debate over intellectual property law’s purpose to a new and more informed place.

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