1/9/08
I. “OWNERSHIP” BY FIRST POSSESSION AND SUBSEQUENT POSSESSION
A. ACQUISITION BY DISCOVERY CAPTURE & CREATION (1-21; 1-5; 58-69)
Acquisition by Discovery
Johnson v. M’Intosh
– Indians had only the right to occupancy
o Didn’t have right to possession because they weren’t Christians
o Locke’s Labor Theory: Indians were not working the land so they could not possess it
– Indians had a form of possession (could hunt it) but not title/ownership
o possession is the not the same as title/ownership
o leasehold agreement: ex. of possession and ownership not overlapping
– Title was in the hands of the U.S. subject to the Indians
– Principle of first in time/first in right (pg 11) – most theorist take position that person who has first possession is the person who should be entitled to ripen that possession into ownership
o using this theory à native Americans would own the property
–
Acquisition by Capture (pg 17)
Pierson v. Post
– Ancient writers say that pursuit alone does not mean possession
– Dissent
o Don’t look at ancient writers to decide, look at the sportsmen of today
o Size of the dogs should determine the outcome (beagles v. hounds)
– Whatever Post had did not rise to the level of possession
o would need to deny the fox’s liberty to acquire possession
o possession cannot be as illusory as Post was trying to argue
Acquisition by Creation (pg 51)
– three main types of I.P.
o copyright – artistic expression
o patent – inventions
o trademarks – names and symbols when used commercially
International News Service v. Associated Press
– not really a copyright case
o copyright does not protect ideas
o news is an idea in this context
o copyright protects the expression (if exact words were taken)
o right to publicity (Vanna White case)
Case Briefs on pg 59
Nichols v. universal Pictures Corp. (copyright)
– scenes a faire: ideas in a story that aren’t really protected because t
from the Goldsmith
o Winkfield Doctrine (minority rule): The goldsmith shouldn’t have to pay twice; no double liability
o Majority View: The goldsmith has to pay
– Voluntary bailment: parking garage, drycleaners, etc .
o involuntary bailment: finders of lost goods
– True owner à Thief à Bona Fide Purchaser
o Bona Fide Purchaser is protected from suit by true owner (can only go after thief)
– Ejectment: Analogous to repelvin
o Trespass: Analogous to trover
Hannah (Plaintiff/Soldier) v. Peel (Defendant/Homeowner) (1945)
Facts: Defendant owned but did not occupy a house. The house was used for quartering soldiers, and one of the soldiers found a valuable pin. He gave it to the police, and after two years, the defendant homeowner took possession of it. Soldier is suing.
