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I want to thank Richard Epstein for his thoughtful comments on my article, The Questionable Use of Custom in Intellectual Property, and the Virginia Law Review for asking me to reply to them.  In my underlying article I bring to light the tremendous impact that custom has on both de facto and de jure intellectual property (“IP”) law, and criticize the general preference of courts to incorporate such custom into the law. I set forth reasons why custom is of particularly limited value in the IP context. My position is not that custom has no relevance to an inquiry of what might be a fair or appropriate use of another’s IP. Instead, my position is more nuanced. Customs should be considered only for a normative proposition—such as what constitutes a fair use—when the specific custom was developed in a representative manner, is aspirational in nature (rather than simply a litigation-avoidance strategy), is applied to represented parties, and where an independent evaluation is made of what impact such a custom would have if broadly adopted.

In his response to my article, Professor Epstein reinforces his defense of the use of custom in the law and suggests that, at least in some instances, his position holds true in the context of IP.  Because Epstein focuses his response on copyright law and the copyright fair use defense, I will generally do the same in this reply. It is worth noting, however, that my article sweeps more broadly, considering customs involving trademarks, patents, and publicity rights.

Professors Dotan Oliar and Christopher Sprigman’s new article on quasi-intellectual property norms in the stand-up comedy world provides yet another compelling example of the phenomenon that I have explored in which the governing intellectual property regime takes a backseat to social norms and other industry customs that dominate the lived experiences of many in creative fields. Their insightful treatment of the microcosm of comics reinforces my concern that customs are being used to expand IP law both inside and outside the courtroom. I am particularly appreciative of the editors of the Virginia Law Review for inviting this brief response, which allows me to build upon my work on the use of customs and norms in IP.

Although Oliar and Sprigman do not use the term “custom,” I think it is important to recognize that custom includes not only industry practices, but also the social norms that interest Oliar and Sprigman. Oliar and Sprigman make few specific recommendations as to how the law should engage with the norms they document. Nevertheless, they suggest that lawmakers and judges should “consider” seriously the existence of such norms. This leaves too much room for such norms to be incorporated into the law as governing customs—something I have resoundingly criticized except in the most narrow of circumstances. Oliar and Sprigman suggest that Congress should consider the norms of stand-up comedy because those norms provide incentives to create without reliance on the formal legal structure of copyright law. Accordingly, they suggest that Congress should resist expanding IP law because the social norms already fill the legal gaps.

I will organize this response as follows: First, I will consider why the existence of social norms does not adequately challenge the incentive rationale, and therefore does not provide a compelling basis for Congressional restraint. Second, I will consider whether the norms that have developed in the stand-up community are worthy of judicial or legislative deference (without regard to their incentive effect). Finally, I will consider what, if anything, the law should do to interrupt the restrictive norms that Oliar and Sprigman identify.