The Coming Crisis of Creative Work: Xiyin Tang ’12, Professor, UCLA Law School

Creative jobs are disappearing overnight. Journalists around the country have reported massive upticks in layoffs; entire newsrooms have shuttered; and, with the rise of artificial intelligence, freelance illustration and writing jobs are predicted to decrease by as much as 90% over the next few years. First Amendment scholars have long noted that this is cause for concern; numerous proposals have centered on the value of journalism for a vibrant democratic society. But these proposals have almost monolithically focused on outputs, reasoning that a diverse news ecosystem creates an informed democratic polity. To date, almost no proposal has suggested that there is something intrinsically worth saving about creative jobs—for example, the act of gathering, reporting on, and writing news—themselves.

Yet both First Amendment and copyright scholars have long argued that there is something uniquely democratic about the very process of creation. Such scholarship recognizes that it is through the creative process—and not just the end products—that we come into being as democratic individuals. But First Amendment and intellectual property scholars alike have failed to address how such creativity should be compensated—if at all.

This essay argues that the right to be paid for creative work is, likewise, essential for a democratic polity. Bridging the First Amendment, employment law, intellectual property, and constitutional political economy literature, it argues that wages-for-creative-work is critical for a democratic society. In doing so, it goes against the dominant suggestion that subsidies to the content and news industries (rather than prioritizing individual jobs and empowering labor organizing) should be the preferred policy in the coming crisis of creative work.

Xiyin Tang ’12 is a Professor of Law at UCLA School of Law. She has previously served as a lead counsel for Facebook and an associate at Mayer Brown LLP and Skadden Arps Slate Meagher & Flom LLP, where she worked on a variety of transactional and litigation matters in the technology, media, and entertainment sectors. Her research focuses on the roles that technological evolution and new modes of dissemination play in the law of intellectual property. Her current research addresses how IP laws should respond to artificial intelligence and its effect on creative labor markets. Past writings have addressed the use of both public and private mechanisms—in the form of class action litigation and confidential contracts, respectively—​as responses to mass digitization and, with it, potentially, mass infringement.​ Her publications have appeared or are forthcoming in the Columbia Law Review, Michigan Law Review, NYU Law Review, and Yale Law Journal, among others. Tang received her B.A. from Columbia University and her J.D. from Yale Law School, where she served as Editor-in-Chief of the Yale Journal of Law and Technology.