Why Custom Cannot Save Copyright’s Fair Use Defense

Volume 93

93 Va. L. Rev. Online 243
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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.

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