As early as 1996, when bearing multiple tattoos was less common among celebrities and athletes, a famous tattoo bearer filed an intellectual property lawsuit to protect against the commercially exploitative use of his tattoos by a third party. Dennis Rodman, “a well-known, extremely successful and hugely popular professional basketball player” in the National Basketball Association (NBA), sought to prevent T-shirt manufacturer Fanatix Apparel, Inc. from making and selling the “Dennis Rodman Tattoo T-Shirt.”2 The long-sleeved T-shirt bore replicas of 10 of Rodman’s tattoos in the same locations as the tattoos on his body.

Throughout most of the twentieth century an exceedingly narrow interpretation and application of the utilitarian rationale for intellectual property protection dominated much of Western intellectual property (IP) law and policy.1 This was especially evident in the United States, wherein an economic incentive/commodification approach to IP social utility pervaded IP jurisprudence and scholarly discourse. In essence, that limited perception of the utilitarian economic incentive approach to stimulating IP endeavor, including among other things, the production of patentable inventions and copyrightable expressive works, was premised on the belief that IP endeavor is most effectively promoted by providing individuals with nearly absolute property rights in their IP output and the accompanying prospect of monetary rewards for their intellectual labors. Concomitantly, the commercial marketplace would not only determine the “rules of engagement” for IP production and dissemination, but also incentivize and determine the quality and quantity of IP output. Such an approach would result, by design, in IP innovators and creators devoting their energies to producing the kind of IP products that the public was willing to pay for, with little incentive to engage in “nonessential” IP activity unlikely to bring adequate economic returns.

In the contemporary global society, intellectual property (IP) is the coin of the realm. As the product of human minds, hearts, and souls, IP is perhaps the most valuable natural resource of the information age. Equipped with the knowledge of what IP is, how important it is in daily life, and how the rules work, anyone can harness IP to empower themselves and their communities.

Legal and other scholars offer and regularly debate a variety of theories of justification for intellectual property protection.2 After all, the intellectual property law helps to determine what kinds of intellectual property people produce and who has access to the products of intellectual property endeavors, including the knowledge and information contained in books and even the life-saving benefits of drugs and medicines.3 While lawmakers can weigh and balance competing societal needs and interests and then promulgate specific laws to achieve particular social objectives, it falls to judges to construe and implement those rules. In doing so, the judges, aided by legal scholarship, identify and articulate the principles, policies, and purposes that, together with the rules themselves, both statutory and common law, supply the bases and justifications for their interpretation and application of the law. Much the same as other legal regimes, and at times even more so given the nature of at least some types of works addressed by IP law, IP law must be shaped to accommodate technological advances and changing social conditions.

Copyright is the legal regime intended to promote and regulate expressive intellectual endeavor.1 As such, copyright is concerned with the intellectual activity which epitomizes the purpose of intellectual property protection: the achievement of human actualization.2