The Questionable Use of Custom in Intellectual Property

85 Pages Posted: 25 Apr 2007 Last revised: 5 Dec 2007

Jennifer E. Rothman

Loyola Law School Los Angeles


The treatment of customary practices has been widely debated in many areas of the law, but there has been virtually no discussion of how custom is and should be treated in the context of intellectual property (IP). Nevertheless, customs have a profound impact on both de facto and de jure IP law. The unarticulated incorporation of custom threatens to swallow up IP law, and replace it with industry-led IP regimes that give the public and other creators more limited rights to access and use intellectual property than were envisioned by the Constitution and Congress. This article presents a powerful critique of the incorporation of customs in IP law and provides a theoretical framework for future analysis of private ordering regimes in IP. The article also provides additional support to those who have criticized the incorporation of custom in other fields.

Keywords: intellectual property, copyright, trademarks, right of publicity, patent, entertainment, custom, licensing, clearance culture, best practices, industry practices, norms, cyberspace, university IP policies, fair use, private ordering, industry standards, private rulemaking

JEL Classification: K11, K12, K13, K39, O33, O34

Suggested Citation

Rothman, Jennifer E., The Questionable Use of Custom in Intellectual Property. Virginia Law Review, Vol. 93, December 2007; Loyola-LA Legal Studies Paper No. 2007-34; Washington U. School of Law Working Paper No. 07-04-04. Available at SSRN:

Jennifer E. Rothman (Contact Author)

Loyola Law School Los Angeles ( email )

919 Albany Street
Los Angeles, CA 90015-1211
United States
(213) 736-2776 (Phone)
(213) 380-3769 (Fax)


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