Property Outline –Prof. Armstrong Fall 2007
Multiple Perspectives on Property Law
Definitions of property
Blackstone: Property is a right which consists of “the free use, enjoyment, and disposal of all his acquisitions, without any control or diminution, save only by the laws of the land.” (Property is a right)
Restatement (First) of Property (1936): The word “property” denotes “legal relations between persons with respect to at thing.” (Property is a thing, tangible or intangible)
Cohen: Property is a “bundle of sticks, with each stick representing some separable aspect of the total.” Property is “a number of different aspects of control which may be examined separately.”
Classic perspectives on property
*Occupation theory (Sir Henry Maine): Acquiring property by taking possession of that which belongs to no man (res nullius—things which have not or have never had an owner). E.g., wild animals, fishes, wild fowl, jewels disinterred for first time.
Natural law theory (Aquinas): Property is a natural right of man, necessary because man will care for what is his, it creates order, and ensures a peaceful state if each man is contented.
Labor theory (Locke): Whatever man puts his labor into becomes his property as he has added something to it beyond nature.
Utilitarian theory (Bentham): Property serves the function of maximizing the utility, or wealth, of individuals and it is created through law. Before laws were made there was no property; take away laws, and property ceases.
Economics theory (Adam Smith): Property ownership defined in economic terms—benefit of society. In general, Smith believed in a natural right to property rooted in his labor theory of value. Protecting the fruits of one’s labor as property served the instrumental ends of stabilizing civil society, creating incentives for work, and advancing the formation of capital.
PUBLICITY
1) PUBLICTY – Right to Publicity protects famous people’s name/estate/persona from infringement because there are proprietary interests behind a person’s fame.
a) A person’s right to publicity is passed to their estate (via INTESTATE SUCCESSION) at death. This is a tangible property right. The estate can then exclude others from using a celebrity’s persona (Crowell)
b) A claim to invasion of privacy can only come from the person whose privacy is allegedly being invaded (Capone and “untouchables”)
c) There is a property right in a celebrity’s persona (ie singer’s voice)
i) an impersonation for monetary gain without celeb’s consent is a violation of the celeb’s right (Midler)
RIGHTS OF POSSESSION (Policy)
2) RIGHTS OF POSSESSION (bundle of sticks)
a) Right to Exclude
i) Property owner has the right to exclude, however, depending on the property type (private versus public) this right to exclude can be restricted
(1) Hotel owner operates a public establishment, he must have good reason to exclude
(a) The Inn owner must gain the right to use that type of ejectment
(b) Patron is causing damage to business (Raider)
b) Right to Destroy, Artist Rights (Carter) (Very limited Right in the Unites States—Statute)
i) The right to possess does not imply to destroy
(1) VARA protects works of visual arts of recognized stature from destruction
(a) Does not apply to artists hired as employees to commission artwork
c) Right to possess
3) POLICY
a) Commons – Multiple owners have the right to
e may possess everything on the land from which he intends to exclude others or of which he has actual (de facto) control—and found for P. (Policy Reasoning)
e) Rule for mislaid property: Still in constructive possession of the true owner and the right of possession as against all but the true owner is in the owner or occupant of the land
f) Rule for lost property: Can be retained by the finder even if found on the premises of another.
g) Rule for treasure-trove: Traditionally treated as lost property with finders’ rights under the common law. But, if the finder was trespassing at the time, it disqualifies his right to ownership.
i) Treasure-trove is not lost or mislaid, but put there for safekeeping by the owner.
ii) Case:
(1) Morgan v. Wiser: D found old coins on P’s property with a medal detector. Court ruled that where property is found embedded in the soil under circumstances repelling the idea that it was lost, the finder acquires no title.
h) Maritime law of salvage: Original owners retained ownership of the lost item, but salvagers were entitled to a generous reward for recovery (not applied to this case)
i) Case:
Columbus-America Discovery Grp. v. Atlantic Mutual Insurance: P found a sunken ship with a lot of gold on it. Court ruled as long as the property had been abandoned by the previous owners, P could gain title through law of finders.
