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-ofits-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.
| Original language | English (US) |
|---|---|
| Pages (from-to) | 263-326 |
| Number of pages | 64 |
| Journal | Notre Dame Law Review |
| Volume | 95 |
| Issue number | 1 |
| State | Published - 2019 |
Funding
© 2019 Jessica Silbey, Eva E. Subotnik & Peter DiCola. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice. * Silbey is Professor of Law, Northeastern University School of Law and 2018 Guggenheim Fellow; A.B., Stanford University; J.D., Ph.D. (Comparative Literature), University of Michigan. Subotnik is Associate Professor of Law, St. John’s University School of Law; B.A., Columbia College; J.D., Columbia University. DiCola is Professor of Law and Searle Research Fellow, Northwestern University Pritzker School of Law; A.B., Princeton University; J.D., Ph.D. (Economics), University of Michigan. Research for this paper was supported by a grant from the Spangenberg Center for Law, Technology and the Arts at Case Western Reserve University School of Law. This paper has benefited from feedback at workshops hosted by Spangenberg Center for Law, Technology and the Arts at Case Western Reserve University School of Law; Engelberg Center on Innovation Law & Policy at NYU School of Law; Works-in-Progress Intellectual Property Colloquium (WIPIP) at Boston University School of Law; Roundtable on Empirical Methods in Intellectual Property at Cardozo School of Law; International Society for the History and Theory of Intellectual Property (ISHTIP) at Toronto University School of Law; Intellectual Property Scholars Conference (IPSC) at Cardozo School of Law; UC Irvine School of Law; the American Bar Foundation; the Munich Summer Institute; the Third Copyright Scholarship Roundtable at the University of Pennsylvania Law School; and Chicago-Kent College of Law. Many thanks also to Barton Beebe, Christopher Buccafusco, Dan Burk, Stacey Dogan, Brett Frischmann, Jeanne Fromer, Brian Frye, Kristelia Garcia, Stuart Graham, Laura Heymann, Erik Hovenkamp, Ray Ku, Ed Lee, Mark Lemley, Mark McKenna, Michael Meurer, Aaron Perzanowski, Betsy Rosenblatt, Jason Schultz, David Schwartz, Christopher Sprigman, Zahr Said, and Rebecca Tushnet for helpful guidance on the project. Research for this paper was supported by a grant from the Spangenberg Center for Law, Technology and the Arts at Case Western Reserve University School of Law. This paper has benefited from feedback at workshops hosted by Spangenberg Center for Law, Technology and the Arts at Case Western Reserve University School of Law; Engelberg Center on Innovation Law & Policy at NYU School of Law; Works-in-Progress Intellectual Property Colloquium (WIPIP) at Boston University School of Law; Roundtable on Empirical Methods in Intellectual Property at Cardozo School of Law; International Society for the History and Theory of Intellectual Property (ISHTIP) at Toronto University School of Law; Intellectual Property Scholars Conference (IPSC) at Cardozo School of Law; UC Irvine School of Law; the American Bar Foundation; the Munich Summer Institute; the Third Copyright Scholarship Roundtable at the University of Pennsylvania Law School; and Chicago-Kent College of Law. Many thanks also to Barton Beebe, Christopher Buccafusco, Dan Burk, Stacey Dogan, Brett Frischmann, Jeanne Fromer, Brian Frye, Kristelia Garcia, Stuart Graham, Laura Heymann, Erik Hovenkamp, Ray Ku, Ed Lee, Mark Lemley, Mark McKenna, Michael Meurer, Aaron Perzanowski, Betsy Rosenblatt, Jason Schultz, David Schwartz, Christopher Sprigman, Zahr Said, and Rebecca Tushnet for helpful guidance on the project.
ASJC Scopus subject areas
- Law