EXISTENTIAL COPYRIGHT AND PROFESSIONAL PHOTOGRAPHY.

Author:Silbey, Jessica
 
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INTRODUCTION 264 I. INTERVIEW METHODOLOGY 271 A. Qualitative Methodology and Its Advantages 272 B. Interview Data Collection 275 II. COPYRIGHT AND THE BUSINESS OF PROFESSIONAL PHOTOGRAPHY 277 A. Bilateral Bargaining: Copyright as Initial Leverage 279 B. Asserting Distinctiveness: Genres, Venues, and Client Types 289 C. Preserving Scarcity: Quantities or Versions 294 D. The Royalty Jackpot: Downstream Licenses or Sales to Third Parties 301 III. PROFESSIONALISM (ANOTHER EXPLANATION FOR VALUE) 305 A. Photographic Work as Personal Work 307 B. Reputational Value 312 C. Relational Value 317 D. Integrity of the Field 320 CONCLUSION: HOW COPYRIGHT MATTERS 324 INTRODUCTION

Photographs proliferate in today's culture, which now produces more than a trillion photographs each year. (1) Smartphones feature cameras, allowing users to take and share photographs just as easily as they call or text. Images saturate media, including internet platforms, through which so much popular discourse occurs. The immensely popular Instagram, for example, is both a playground for sharing snapshots with friends and a jungle of fierce competition among marketers relying on the expressive power of photography. (2) Any technology as pervasive as digital photography will present challenges for law, some of them unexpected. New phenomena, such as editing software used to doctor evidence or facial-recognition software used to profile consumers, are putting pressure on the law to adapt. (3) In this Article, we explore the perennial problem of law's responsiveness to technological change at the intersection of law and photography. (4)

Our particular interest is in copyright policy toward photographs. The debate in recent years concerns how the law should respond to the tension between the pervasiveness of photographs and the pervasiveness of unauthorized copying. (5) Copyright law is the field ostensibly most applicable to the regulation of creative work, including photography. Although it regulates publishers, consumers, and other groups, (6) some argue that copyright has a special focus on creators. (7) Thus, we designed a qualitative, empirical study of professional photographers to investigate how they are adapting their creative and business practices in the twenty-first century and how law (specifically copyright law) affects their work. The broader aim of our project is to document the effects of technological change and copyright's place in that change in order to understand the law's adaptive functions in the digital communication ecosvstem.

Photographers' working lives have changed as a result of digital technology and the internet. This is of course common to many professions over the last two decades. (8) For photographers in particular, the changes in their experiences have to do with--to name a few examples--the transition from film to digital, (9) the development of the internet into the photograph-intensive medium it is today, (10) and the rise of online stock-photography services. (11) As they undergo these transitions in technology and business models, we learned that photographers pay attention to and attempt to make use of copyright. (12) Photographers assert copyright by providing notice through watermarks, metadata, or both. (13) Professional freelance photographers insist on retaining copyright when negotiating with clients who purchase their services. Moreover, professional photographers have had vocal and organized representation when lobbying for copyright reform measures. (14) And in some cases photographers engage in cease-and-desist practice against digital platforms, publishers, and others. (15)

Photographers' experience of technological change and views about copyright, taken together, compel the following questions: How are photographers managing and responding to the technological shift to digital, internet-based communication? In what ways arc photographers looking to law, specifically to copyright law, to help them navigate the changing technological landscape? What does this law mean for them and their work? Over the past three years, we have conducted an in-depth qualitative investigation to answer these questions. We have done thirty-two long-form interviews with photographers, agents, and businesses. We have also observed at studios, galleries, and international photo exhibitions. This Article reports our findings and analysis, and is the first such study of digital photography and copyright in the internet era.

A reason photographers might care about copyright comes from traditional law-and-economics theory, which posits that copyright infringement lawsuits, and the threat of them, deter copyists to some degree and protect creators' profits. (16) But this theory does not end up fitting with the facts on the ground. Unlawful uses of photographs are, of course, hard to combat in today's world. (17) The current, online environment makes infringements too numerous to fight exhaustively. Unlawful uses can also occur offline, making them hard to detect. Detection requires time, effort, software, third-party assistance, and money. Demand letters and lawsuits require know-how, legal representation, and money. The photographers we studied, who come from a wide variety of working photographers, told us that copyright enforcement is a losing battle and largely not worth their time. (18) Yet they continue to work, produce images, and sell them. That the traditional economic account of copyright fails to explain photographers' behavior is an important finding of this study. But, perhaps even more surprisingly, photographers continue to appreciate and declare allegiance to copyright law despite its lack of deterrent effect.

This presents a puzzle. If copyright enforcement is costly, difficult, and in many instances ineffectual, why, exactly, do photographers care about copyright? In our data, we identify three explanations.

One explanation is a slight modification of the traditional law-and-economics theory. Perhaps copyright is not currently operating as the theory predicts, but photographers believe it could do so with modifications. This is the "perfect enforcement" scenario in which photographers care about copyright because they wish enforcement were more effective. (19) Photographers experience more competition than ever from amateurs. (20) And some tell a story about declining revenue from certain aspects of their business from this competition. One reaction to that account is to resolve that copyright simply needs to do better: if copyright deterred more copyists or if more photographers sued infringers, more profits would be protected and low-end competition would not hurt as much. As we will describe in more detail below, this explanation is one way that photographers interpret the law's possible effect on their work, but it is not the only or predominant way.

The other two explanations for why photographers care about copyright are underappreciated and together represent the most substantial contributions of this Article. And, as we will explain, an interesting connection exists between these other two explanations.

First, our research reveals that photographers care about copyright for its role in contracting with clients. The market for photographs divides into two categories: clients who hire photographers for a specific service and anonymous customers who purchase the rights to use existing photographs. The traditional economic story about copyright enforcement mainly calls to mind anonymous customers--strangers--who might buy a copy of an expressive work--a commodity in a mass market--from copyists rather than the original creators. (21) But this aspirational goal of reselling to anonymous third parties is rarely achieved among the photographers we interviewed. Many more photographers describe copyright as providing leverage in their direct negotiations with clients because it endows photographers with a standardized bundle of rights with which to bargain. Copyright also provides opportunities to collect extra fees for uses outside the scope of a license. We learned that in these ways copyright is important in the scope of the fee-for-services bargain struck between photographers and clients.

This "copyright as leverage" explanation is drawn from our data. Our analysis of it relies on economic pricing theory and offers an alternative to the traditional incentive- and deterrence-based theory of copyright. The phenomenon of photographers, supported by copyright, seeking leverage in negotiations with clients amounts to photographers seeking control over how they price products and services. Pricing in bilateral negotiations with clients is individualized; it does not resemble pricing for a mass market. Photographers celebrate the opportunity to negotiate one-on-one as it accords with the bespoke services they describe themselves as providing to clients. Other photography pricing strategies that we learned are part of these negotiations rely on bundling, versioning, and maintaining separate prices for distinct genres or client types. (22) A critical insight of this Article is that these pricing strategies are distinct from, but not mutually exclusive of, the business strategy of enforcing copyrights directly to protect and maintain profits. (23) We are thus augmenting and even challenging the standard economic theory of copyright as enforcement. The photographers' accounts teach us that other economic forces are at work. Copyright as leverage for pricing client services could be as or more important than copyright enforcement for earning a living from producing and distributing expressive work.

Second, our data also take us beyond economics toward a set of other accounts that photographers provide to explain copyright's importance to them. Throughout the interviews, photographers describe caring about copyright for nonfinancial reasons as well. For example, some photographers describe copyright...

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