Jessica Silbey

Jessica Silbey

Professor of Law

Yanakakis Faculty Research Scholar

BA, Stanford University
JD, University of Michigan Law School
PhD, University of Michigan


Biography

Jessica Silbey teaches and writes in the areas of intellectual property, constitutional law, and law and the humanities.

In addition to a law degree, she has a PhD in comparative literature and draws on her studies of literature and film to better account for law’s force, both its effectiveness and failing as socio-political regulation. In 2018, she was a Guggenheim Fellow and has recently completed a book supported by that fellowship called Against Progress: Intellectual Property and Fundamental Values in the Internet Age (Stanford University Press, 2022). In Against Progress, Professor Silbey considers intellectual property debates in law and culture as a bellwether of changing social justice needs in the 21st century. The book argues that intellectual property law is becoming a central framework through which to discuss essential socio-political issues, extending ancient debates over our most cherished constitutional values, refiguring the substance of “progress” in terms that demonstrate the urgency of art and science to social justice today.

Professor Silbey’s last book, The Eureka Myth: Creators, Innovators and Everyday Intellectual Property (Stanford University Press, 2015), altered the national conversation about creativity and invention. Based on a qualitative empirical analysis of interviews with authors, artists, inventors and lawyers, the book challenges the traditional notion of intellectual property as merely creating financial incentives necessary to spur innovation. Professor Silbey continues her qualitative empirical study of intellectual property in on-going research on practices of digital photography and design.

In addition to her research on intellectual property and constitutional law, Professor Silbey writes and speaks about the use of film as a legal tool (body cams, surveillance video, medical imaging) and the representations of law in popular culture (courtroom dramas, reality television). She is the co-editor of several books, including Law and Popular Culture: A Course Book (Vandeplas 2020) (with Michael Asimow), Trial Films on Trial (University of Alabama Press, 2019) (with Austin Sarat and Martha Umphrey) and Law and Justice on the Small Screen (Bloomsbury, 2012) (with Peter Robson). She is an affiliate fellow at Yale’s Information Society Project and was a faculty associate at the Berkman Klein Center for Internet and Society at Harvard University. She was previously chair of the Association of American Law School’s (AALS) national Section on Intellectual Property and served on the AALS Presidential Conference Film Committee from 2012-2020. She was co-chair of the New England Chapter for the Copyright Society of the United States from 2015 through 2018. She has been a distinguished lecturer and visiting fellow at the Willson Center for the Humanities and the Arts at the University of Georgia and was honored to give the 56th Robert D. Klein Lecture at Northeastern University in 2020. Before joining Boston University School of Law, Professor Silbey was a faculty member at Northeastern University School of Law where she was the faculty director of the Center for Law, Innovation, and Creativity, an affiliate professor in English, and Core Faculty at Northeastern’s NuLab for Maps, Texts, and Networks.

Professor Silbey was honored to clerk for Judge Robert E. Keeton on the United States District Court for the District of Massachusetts and Judge Levin Campbell on the United States Court of Appeals for the First Circuit. Before becoming a law professor, she practiced law in the disputes department of the Boston office of Foley Hoag LLP focusing on intellectual property, bankruptcy, and reproductive rights.

Publications

Scroll left to right to view all publications

  • Jessica Silbey & Mark P. McKenna, A Qualitative Method for Investigating Design, in Handbook on Empirical Studies in Intellectual Property Law (Estelle DerClaye,2023)
    Scholarly Commons
  • Jessica Silbey, Centering Black Women in Patent History JOTWELL (2022) (book review)
    Scholarly Commons
  • Jessica Silbey, Digital Photographers: Trust, Truth, and Copyright in the Digital Age, in The Subjects of Literary and Artistic Copyright (Enrico Bonadio and Cristiana Sappa,2022)
    Scholarly Commons
  • Jessica Silbey, Against Progress: Intellectual Property and Fundamental Values in the Internet Age (2022)
    Scholarly Commons
  • Jessica Silbey, New Copyright Stories: Clearing the Way for Fair Wages and Equitable Working Conditions in American Theater and other Creative Industries 83 Ohio State Law Journal Online (2022)
    Scholarly Commons
  • Jessica Silbey & Mark P. McKenna, Investigating Design 84 University of Pittsburgh Law Review (2022)
    Scholarly Commons
  • Jessica Silbey, Four Privacy Stories and Two Hard Cases, a Comment on Skinner-Thompson's Privacy at the Margins 37 Constitutional Commentary (2022)
    Scholarly Commons
  • Jessica Silbey & Jeanne Fromer, Retelling Copyright: The Contributions of the Restatement of Copyright Law 44 Columbia Journal of Law & the Arts (2021)
    Scholarly Commons
  • Jessica Silbey, We're All Pirates Now: Making Do in a Precarious IP Ecosystem 39 Cardozo Arts & Entertainment Law Journal (2021)
    Scholarly Commons
  • Jessica Silbey, Intellectual Property and Ethnography: A Qualitative Research Approach, in Handbook of Intellectual Property Research: Lenses, Methods, and Perspectives (Irene Calboli and Maria Lillà Montagnani,2021)
    Scholarly Commons
  • Jessica Silbey & Michael Asimow, Law and Popular Culture: A Course Book (3rd edition) (2020)
    Scholarly Commons
  • Jessica Silbey, Fixing Informational Asymmetry Through Trademark Search Jotwell (2020) (book review)
    Scholarly Commons
  • Jessica Silbey, Against Progress: Interventions About Equality in Supreme Court Cases About Copyright Law 19 Chicago-Kent Journal of Intellectual Property (2020)
    Scholarly Commons
  • Jessica Silbey, Right of Repair in the Digital Economy JOTWELL (2019) (book review)
    Scholarly Commons
  • Jessica Silbey, Control over Contemporary Photography: A Tangle of Copyright, Right of Publicity, and the First Amendment 42 Columbia Journal of Law & the Arts (2019)
    Scholarly Commons
  • Jessica Silbey & Eric Goldman, Copyright’s Memory Hole 2019 Brigham Young University Law Review (2019)
    Scholarly Commons
  • Jessica Silbey, Intellectual Property Harms: A Paradigm for the Twenty-First Century 99 Boston University Law Review (2019)
    Scholarly Commons
  • Jessica Silbey & Woodrow Hartzog, The Upside of Deep Fakes 78 Maryland Law Review (2019)
    Scholarly Commons
  • Jessica Silbey, Trial Films on Trial (2019)
    Scholarly Commons
  • Jessica Silbey, Justifying Copyright in the Age of Digital Reproduction: The Case of Photographers 9 UC Irvine Law Review (2019)
    Scholarly Commons
  • Jessica Silbey, Eva Subotnik & Peter DiCola, Existential Copyright and Professional Photography 95 Notre Dame Law Review (2019)
    Scholarly Commons
  • Jessica Silbey & Zahr Said, Narrative Topoi in the Digital Age 68 Journal of Legal Education (2018)
    Scholarly Commons
  • Jessica Silbey, Review of Punishment in Popular Culture by Charles Ogletree Jr. & Austin Sarat, eds. 51 Law & Society Review (2017) (book review)
    Scholarly Commons
  • Jessica Silbey, American Trial Films and the Popular Culture of Law, in Oxford Research Encyclopedia of Criminology (Henry Pontell,2017)
    Scholarly Commons
  • Jessica Silbey, Heuristic Interventions in the Study of Intellectual Property 101 Minnesota Law Review Headnotes (2017)
    Scholarly Commons
  • Jessica Silbey, Review of What's Wrong with Copying? by Abraham Drassinower 7 IP Law Book Review (2017) (book review)
    Scholarly Commons
  • Jessica Silbey, Fairer Uses 96 Boston University Law Review (2016)
    Scholarly Commons
  • Jessica Silbey, Picturing Moral Arguments in a Fraught Legal Arena: Fetuses, Photographic Phantoms and Ultrasounds 16 Georgetown Journal of Gender and the Law (2015)
    Scholarly Commons
  • Jessica Silbey, Reading Intellectual Property Law Reform through the Lens of Constitutional Equality 50 Tulsa Law Review (2015)
    Scholarly Commons
  • Jessica Silbey, The Past and Future of Copyright Politics JOTWELL (2014) (book review)
    Scholarly Commons
  • Jessica Silbey, Promoting Progress: A Qualitative Analysis of Creative and Innovative Production, in The SAGE Handbook of Intellectual Property (Matthew David and Debora Halbert,2014)
    Scholarly Commons
  • Jessica Silbey, The Eureka Myth: Creators, Innovators, and Everyday Intellectual Property (2014)
    Scholarly Commons
  • Jessica Silbey, Persuasive Visions: Film and Memory 10 Law, Culture and the Humanities (2014)
    Scholarly Commons
  • Jessica Silbey & Meghan Hayes Slack, The Semiotics of Film in US Supreme Court Cases, in Law, Culture and Visual Studies (Anne Wagner and Richard K. Sherwin,2014)
    Scholarly Commons
  • Jessica Silbey, Aaron Perzanowski & Marketa Trimble, Afterword: Conferring About the Conference 52 Houston Law Review (2014)
    Scholarly Commons
  • Jessica Silbey, Review of Putting Intellectual Property In Its Place: Rights Discourses, Creative Labor and the Everyday by Laura J. Murray, S. Tina Piper & Kirsty Robertson 27 Intellectual Property Journal (2014) (book review)
    Scholarly Commons
  • Jessica Silbey, Peter Decherney, Rebecca Tushnet & Bill Herman, Copyright Fair Use: A Four Way Discussion and Book Round Up 52 Cinema Journal (2013)
    Scholarly Commons
  • Jessica Silbey, Patent Variation: Discerning Diversity Among Patent Functions 45 Loyola University of Chicago Law Journal (2013)
    Scholarly Commons
  • Jessica Silbey, Law and Justice on the Small Screen (2012)
    Scholarly Commons
  • Jessica Silbey, Persuasive Visions: Film and Memory 10 Law, Culture, and the Humanities (2012)
    Scholarly Commons
  • Jessica Silbey, Images in/of Law 57 New York Law School Law Review (2012)
    Scholarly Commons
  • Jessica Silbey, Harvesting Intellectual Property: Inspired Beginnings and 'Work-Makes-Work,' Two Stages in the Creative Processes of Artists and Innovators 86 Notre Dame Law Review (2011)
    Scholarly Commons
  • Jessica Silbey, Introduction to Symposium: Reasoning from Literature 22 Yale Journal of Law and the Humanities (2010)
    Scholarly Commons
  • Jessica Silbey, Comparative Tales of Origins and Access: Intellectual Property and the Rhetoric of Social Change 61 Case Western Reserve Law Review (2010)
    Scholarly Commons
  • Jessica Silbey, Evidence Verité and the Law of Film 31 Cardozo Law Review (2010)
    Scholarly Commons
  • Jessica Silbey, The Rhetoric of Intellectual Property: Copyright Law and the Regulation of Digital Culture, by Jessica Reyman (Book Review) 1 The IP Law Book Review (2010) (book review)
    Scholarly Commons
  • Martin A. Schwartz, Jessica Silbey, Jack Ryan & Gail Donoghue, Analysis of Videotape Evidence in Police Misconduct Cases 25 Touro Law Review (2009)
    Scholarly Commons
  • Jessica Silbey, A Witness to Justice, in 46 Studies in Law, Politics, and Society (Austin Sarat,2009)
    Scholarly Commons
  • Jessica Silbey, Cross-Examining Film 8 University of Maryland Law Journal of Race, Religion, Gender and Class (2009)
    Scholarly Commons
  • Jessica Silbey, The Politics of Law and Film Study: An Introduction to the Symposium on Legal Outsiders in American Film 42 Suffolk University Law Review (2009)
    Scholarly Commons
  • Jessica Silbey, The Mythical Beginnings of Intellectual Property 15 George Mason Law Review, (2008)
    Scholarly Commons
  • Jessica Silbey, Criminal Performances: Film, Autobiography, and Confession 37 New Mexico Law Review (2007)
    Scholarly Commons
  • Jessica Silbey, Truth Tales and Trial Films 40 Loyola of Los Angeles Law Review (2007)
    Scholarly Commons
  • Jessica Silbey, A History of Representations of Justice: Coincident Preoccupations of Law and Film, in Representations of Justice (Masson, O'Connor,2007)
    Scholarly Commons
  • Jessica Silbey, Videotaped Confessions and the Genre of Documentary 16 Fordham Intellectual Property, Media and Entertainment Law Journal (2006)
    Scholarly Commons
  • Jessica Silbey, Filmmaking in the Precinct House and the Genre of Documentary Film 29 Columbia Journal of Law & the Arts (2006)
    Scholarly Commons
  • Jessica Silbey, Judges as Film Critics: New Approaches to Filmic Evidence 37 University of Michigan Journal of Law Reform (2004)
    Scholarly Commons
  • Jessica Silbey, Judges as Film Critics: New Approaches to Filmic Evidence 37 University of Michigan Journal of Law Reform (2004)
    Scholarly Commons
  • Jessica Silbey, What Do We Do When We Do Law and Popular Culture 27 Law & Social Inquiry (2002) (book review)
    Scholarly Commons
  • Jessica Silbey, Patterns of Courtroom Justice 28 Journal of Law and Society (2001)
    Scholarly Commons

In the Media

Scroll left to right to view all in the media posts

  • BU Today October 11, 2022

    How Did Prince and Andy Warhol Wind Up before the Supreme Court?

    Jessica Silbey is Quoted.
    read more

  • USA Today October 5, 2022

    Elon Musk Says He Wants to Buy Twitter for $44 billion. Is the Twitter Deal Back on? What Happens Now?

    Jessica Silbey is quoted.
    read more

  • USA Today October 4, 2022

    Elon Musk Says He Wants to Buy Twitter for $44 billion. Is the Twitter Deal Back on? What Happens Now?

    Jessica Silbey provides insight.
    read more

  • LegalTalkNetwork September 19, 2022

    Intellectual Property and Changing Social Justice Needs

    Jessica Silbey is invited to discuss issues in IP Law.
    read more

  • Kirkland and Ellis

    Church’s ‘Hamilton’ Show Likely Runs Afoul of Copyright Law

    Jessica Silbey is quoted.
    read more

  • The Brink

    How Copyrights, Patents, and Trademarks May Stifle Creativity and Progress

    Jessica Silbey is featured.
    read more

  • The Hill September 14, 2022

    Judge Rightly Halts Arizona’s Anti-Democratic Effort to Limit Filming Police Misconduct

    Jessica Silbey is quoted.
    read more

  • Bloomberg Law September 12, 2022

    Roberto Clemente Case Puts Puerto Rico’s Broad Immunity at Risk

    Jessica Silbey is quoted.
    read more

  • Bloomberg Law News August 15, 2022

    Pressure on Patent Judges to Alter Rulings Bolsters Reform Push

    Jessica Silbey is quoted.
    read more

  • Smerconish June 15, 2022

    What Can We Learn from Intellectual Property Law About Protecting Abortion Access?

    A piece authored by Jessica Silbey.
    read more

  • Above The Law June 14, 2022

    Pushing Back on Progress

    Jessica Silbey's research is referenced.
    read more

  • Salon June 4, 2022

    Was Andy Warhol’s Portrait of Prince Copyright Infringement? How This Case Could Reshape IP Law

    Jessica Silbey pens an opinion.
    read more

  • Cheddar News May 20, 2022

    $40 Billion to Ukraine & Strictest Abortion Law Yet: What You Need2Know

    Jessica Silbey is interviewed.
    read more

  • BU Today April 26, 2022

    Elon Musk Buys Twitter. Should We Worry?

    Jessica Silbey answers questions about Elon Musk buying Twitter.
    read more

  • American Law Institute January 4, 2022

    ALI Elects 59 New Members

    Jessica Silbey is elected to the American Law Institute.
    read more

  • View All Articles

Stories from The Record

View All Stories

Activities & Engagements

View All Activities & Engagements

Courses

Copyright Law: LAW JD 929

3 credits

This course will give you an introduction to copyright, including a foundation in the theories underlying copyright law, an understanding of the current contours of copyright protection, the basic elements of proving infringement, the fair use defense to and remedies for infringement, and familiarity with related forms of liability such as secondary and vicarious liability. Each class meeting will consist of a combination of lecture and class discussion. Our discussions will sometimes focus on dissecting a landmark case and other times on working through the dynamics of a transaction or a policy question based on your reading. We'll also work through hypotheticals based on real-world examples and explore scenarios that will require you to think from a variety of different perspectives. Grading will be based on class participation (15%) and a 3-hour, open book, final exam.

FALL 2022: LAW JD 929 A1 , Sep 7th to Dec 7th 2022
Days Start End Credits Instructors Bldg Room
Mon,Wed 11:00 am 12:25 pm 3 Jessica Silbey LAW 413

Creative & Innovative Economies (S): LAW JD 770

3 credits

This IP seminar studies the complicated relationship of access and ownership in the development and sustainability of IP-rich communities in the internet age. Students read intensely for the first half of the semester about particular creative and innovative communities and their IP practices, e.g., video game developers, graffiti artists, biomedical engineers, podcasters, photographers, chefs, jewelry designers, app developers (the list is endless!). In this first part of the course, students write short response papers and discuss the material. They will also begin formulating a plan for the second half of the semester, in which they will choose their own a creative or innovative community to study in depth. The second half of the semester supports the student in that research project, identifying the community, gaining access to evidence about that community, analyzing the evidence, and developing legal analysis of intellectual property issues for that community. We workshop the individual projects as a group, read proposals together, and continue with our reading on intellectual property issues that relate to the chosen projects. The final project is a combination of (1) facts/evidence about the community, (2) a written analysis of the facts, (3) legal proposals to aid the achievement of its goals as a creative or innovative community, and (4) a short presentation to the class of the findings/analysis. COREQUISITE/PREREQUISITE: Intellectual Property, Copyright, Trademark, or Patent Law. GRADING NOTICE: This course does not offer the CR/NC/H option. UPPER-CLASS WRITING REQUIREMENT: A limited number of students may use this class to satisfy the requirement. **A student who fails to attend the initial meeting of a seminar (designated by an (S) in the title), or to obtain permission to be absent from either the instructor or the Registrar, may be administratively dropped from the seminar. Students who are on a wait list for a seminar are required to attend the first seminar meeting to be considered for enrollment.

SPRG 2023: LAW JD 770 A1 , Jan 17th to Apr 25th 2023
Days Start End Credits Instructors Bldg Room
Tue 4:20 pm 6:20 pm 3 Jessica Silbey