The Questionable Use of Custom in Intellectual Property

85 Pages Posted: 25 Apr 2007 Last revised: 7 Feb 2024

See all articles by Jennifer E. Rothman

Jennifer E. Rothman

University of Pennsylvania Law School; Yale Information Society Project, Yale Law School


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, Washington U. School of Law Working Paper No. 07-04-04, Loyola-LA Legal Studies Paper No. 2007-34, Available at SSRN:

Jennifer E. Rothman (Contact Author)

University of Pennsylvania Law School ( email )

3501 Sansom Street
Philadelphia, PA 19104
United States

Yale Information Society Project, Yale Law School ( email )

127 Wall Street
New Haven, CT 06511
United States

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