Property I Outline

Property I Outline
Professor Zeiner
Fall 2004
 
 
Chapter I: First Possession—Acquisition of Property by Discovery, Capture and Creation
 
Introduction
Þ      Property law is the study of legal system people devise to govern relations among themselves in respect to land and other stuff
Þ      Property Course begins with the subjugation of the defeated people. The Victor’s Rules Govern. The subjugated people do not count as much as the victors
Þ      Our Property system is based on the English system
Þ      A case to quite title is a case to extinguish someone else’s competing interest to land
Þ      Conveying title = conveying ownership; transferring title
 
Acquisition by Discovery
Þ      Property may be acquired by discovery.  Essentially entails “the sighting or finding of hitherto unknown or uncharted territory; it is frequently accompanied by a landing and the symbolic taking of possession,” acts that give rise to an inchoate title that must subsequently be perfected, within a reasonable time, by settling in and making an effective occupation.
Þ      Property may be acquired by conquest. Essentially entails the taking of possession of enemy territory through force, followed by formal annexation of the defeated territory by the conqueror.
o        Neither of these two modes of territorial acquisition has much immediate relevance today.
 
ü       Johnson v. M’intosh:
o        Rule: Discovery of land in America by a European power gives absolute title subject only to the Indian right of occupancy.
o        The Indians’ was not recognized even though they were the first in time
 
Þ      Real Property = land + everything affixed to the land (including trees and buildings)
Þ      Personal Property
o        Tangible personal property (books, dogs)
§         Consumable tangible personal property (food, firewood, perfume)
§         Non-consumable tangible personal property (painting, chair)
o        Intangible personal property (stocks, bonds, savings account) represented by some type of tangible personal property
Þ      Chattels = old word meaning personal property
Þ      Chain of Title. That links in the chain are the transactions by which a parcel of land moves from order to owner over time. (Originally in US land belonged to crown or US gov deed comes out of crown or US gov;
o        give chunk of land to S and he gives parts of it to J and A and they give some to X Y Z and then they give it to D E F)
Þ      Discovery in conquest referred to methods of acquiring territory in international law
Þ      Acquisition by Discovery essentially entails the citing or finding of unknown or uncharted territory and is frequently accompanied by landing and the symbolic taking of possession acts that give the rise to an inchoate title that must subsequently be perfected within a reasonable time, by settling in and making an effective occupation.
Þ      Conquest is the taking of possession of enemy territory through force, followed by a formal annexation of the defeated territory by the conqueror
 
Acquisition by Capture
A.     General Rule: A person who first captures resources is entitled to the resources.
a.      Capture of Wild Animals:If wild animals (sometimes called animals ferae naturae) are capture, they belong to the captor. But capture is required; merely chasing the animal is not enough. [Example: Pierson v. Post] ü       Pierson v. Post: (Hunters)
o        Facts: P was pursuing a fox, and D killed the fox and took possession of it.
o        Rule: Since a fox is a wild animal, a property right can be acquired in it only if the hunter “occupies” it. Mere pursuit of a wild animal is insufficient to vest title to the hunter.  Ownership is based on possession. Possession meant killing the animal or mortally wounding it, or capturing it, or making escape of the animal impossible
o        Rationale:  
·       Competition: Society’s object to capture foxes (to destroy them) or ducks (to put them on the table). To foster competition, resulting in more wild animals being captured, society does not reward the pursuer, only the captor. It is assumed that this brings more persons into pursuit, resulting in more capture.
·       Ease of Administration:Rewarding capture, an objective act, is an easier rule to administer than protecting pursuit, which is hard to define and can take many forms. Thus the rule of capture promotes certainty and efficient administration in a situation where the stakes are not high and not worth a lot of judicial time in resolving conflicting claims.
 
Þ      Note:The rule of capture—designed to destroy wild animals—was laid down in the 19th century when it was desirable to destroy wild animals. Today, the rule of capture, promoting pursuit and killing, leads to over capture of fish and overinvestment in capture technology. Similarly, other species have become endangered by a rule that treats wild animals as unowned property available to anyone. 
Þ      Wounded or trapped animals: If an animal has been mortally wounded or trapped so that capture is virtually certain, the animal is treated as captured. But if the animal is only in the process of being entrapped, and the door has not been snapped shut, it has not been captured.
                                                                                                  i.      Exception: Title to a wild animal is acquired when a hunter apprehends the beast in accordance to custom. While the general rule is that the captor must acquire physical control over the animal, in some hunting trades, a custom, which is thought more effective in getting animals killed, may dictate a different result. [Ghen v. Rich]  
ü       Ghen v. Rich: (Whale case)
o        Facts: Ghen (P) shot and killed a whale, which sank to the bottom of the sea. Three days later, Ellis found the whale on the shore and sold it to Rich (D).
o        Rationale: The custom was to award the whale to the ship that first killed the whale-even though the whale sank and was discovered several days later floating on the surface by another whaler. This custom advanced the killing of whales (society’s objective), because the killer ship could be off looking for other whales without waiting around for the whale to rise. This custom was recognized by the courts as giving possession.
o        Rule: The first person who obtains possession of an abandoned chattel becomes the owner.  
Þ      Note: In addition to mortally wounding an animal, person is required to take the fullest act of appropriation of as possible (kill it and mark it as yours)
 
o        Abandonment occurs when somebody throws away or leaves property with an intent of giving it up
o        Lost Property occurs when the true owner gives up all intention and effort of recovering it. 
 
ü       Keeble v. Hickeringill: (decoy duck pond)
o        Facts: Plaintiff possessed the land that contained a pond for decoying and taking ducks. The defendant , purposely scared the ducks away to avoid the plaintiff from capturing them. 
o        Rule: A man who uses his art or his skill to catch wild fowl or tame cattle, to sell and dispose of for his profit, this is his trade; and he that hinders another in his trade or livelihood is liable to an action for doing so.
 
Þ      Constructive Possession v.           Actual Possession
o        The landowner has constructive possession of the wild animals on his land; this differs from Actual ownership because the landowner really does not have actual possession of the wild animals
 
Acquisition by Creation
A.     Copycats
 
ü       International News Service v. Associated Press: (Copying news)
o        Facts: Int. News service (D) copied news that associated press (P) gathered.
o        Rationale: Since Associated Press (P) has invested some time and resources into the creation of the news, it can prevent others from copying the news until the commercial value of the news has passed away. If the court allowed copying of fresh news, no news service could manage to stay in business. And even though these parties have no property interest enforceable in the news as to the entire world that does not mean that each does not have such an interest as between themselves. The gathering and distribution of the news as between those engaged in that particular business does create property rights in that work product. The acquisition and transmission of news has an exchange value to one who can misappropriate it. Each party is under a duty to conduct its own business as to not unnecessary or unfairly injure that of the other. Defendant has been taking material that was acquired by plaintiff as a result organization and the expenditure of labor, skill, and money, and which is fallible for money, and that the defendant in appropriating it and setting it as its own is endeavoring to reap , where it has not sown, and by disposing of it to newspapers that are competitors of complaint to its members is appropriating to itself the harvest of those who have sown
 
ü       Note: Court decided this was an Unfair Competition case: Courts have sometimes protected labor and investment under the law of unfair competition.
 
ü       Cheney Brothers v. Doris Silk Corp.: (fashion design)
o        Facts: Doris (D) copied a fashion design from Cheney (P). All such designs have a short life.
o        Rationale: To avoid the monopoly and encourage competition, the common law commonly allows copying and imitation. But there are exceptions, like the right of publicity.
o        Exceptions: Copyright and Patent laws have been enacted by Congress to solve the dilemma of how much protection to give creativity. Patents and copyrights are limited in time. Copyright law includes a fair use exception and a right to parody. A person cannot copyright an idea, but can copyright and expression of it. A full explanation must await a course in copyright, but in a nutshell a person can imitate another’s work to some extent, but not too much.
ü       At Common law copying and imitation is ok. Patents and copyrights are legislative exceptions. Excluding copying or imitation can be done but not through common law; must be done by Congress
 
ü       Smith v. Chanel: (imitation perfume)
o        Rationale: the court held that a perfume company could claim in an advertisement that its product was the equivalent of the more expensive Chanel # 5. Because the perfume was unpatented defendant had a right to copy. Imitation is the lifeblood of competition. By taking his free ride the copyist serves an important public interest by offering comparable goods on or price.
 
B.     Intellectual Property Law
 
General Notes
♥        The ability to write copyrights and patents comes from Article § 8 of the Consitution
♥        The first commissioner to patent was Thomas Jefferson
 
Patent Law
♥        More than 7 million patents presently. The contradiction is that the US is a System of capitalism and free market and patent law goes against it
o        Cannot patent law of nature
♥        3 types of Patents: Utility Patents; Design Patents; and Asexual Plants Patents
o        Utility patents: may be available for inventions which are novel, useful, and non-obvious. They can be obtained for the utilitarian or functional aspects of an invention. They have a term of 20 years from the date of the filing of the patent application with the Patent and Trademark Office, although term extensions are available in certain specific situations. During the term of a utility patent, maintenance fees must be paid in order to sustain the patent. Utility patents are, by far, the most common type of patents issued by the US government
§         Most common: Pharmaceuticals; Computers; Anything that is useful
o        Design patents: Can be obtained for the aesthetic appearance of an invention. To be eligible for a design patent, an invention must be novel, nonobvious and ornamental. In other words, the design must not serve a primarily functional purpose. The outward visible feature of a new light fixture, for example, might be the subject of a design patent. They expire at the conclusion of 14 years from the date of the grant of the patent. Not subject to a maintenance fee payments.
o        Asexual Plant Patent: May be issued for an invention or discovery of a distinct and new variety of plant which may be asexually reproduced. To qualify for this type of a patent, the discovery or invention must be novel, distinct, and non-obvious. Plant patents have a duration of 20 years from the date of filing the plant patent application
Trademarks
♥        Definition: A trademark is a word, phrase, symbol or design, or combination thereof, which identifies and distinguishes the source of the goods or services of one party from those of others. A service marl is closely related, except that it serves to identify and distinguish the source of services rather than products. Certification marks used to certify that goods or services of others have certain characteristics. Collective marks are used to indicate membership in an organization or to indicate that goods or services are produced or authorized by an organization.
♥        Purpose of Trademark Law: designed to protect the consumer good will which merchants develop through the use of trademarks and service marks. This goal is achieved by preventing would-be infringers from using similar marks which could confuse consumers into thinking that these goods or services originate from the original mark owner. A mark thus safeguards the owner’s reputation in the marketplace as well as the value of the owner’s advertising dollar.
♥        Categories of Marks: Four basic categories: fanciful, arbitrary, suggestive, descriptive, generic
o        Fanciful: (EXXON® and XEROX®) are completely made-up. Arbitrary marks in no way describe the goods or services they meant to identify.
o        Arbitrary: (APPLE® and IVORY®) They are common English-language words, but are “arbitrary” as applied as the specific goods or services for which they are used. 
o        Suggestive: (7-ELEVEN® and COPPERTONE®), indirectly describe the products or services they identify. 
·         Fanciful, Arbitrary, and Suggestive can be valid trademarks
o        Descriptive: (CHAP STICK® and BUFFERIN®, includeS marks which merely describe the products or services they identify, describe the geographical location from which the goods or services emanate, or compromise a person’s surname. Descriptive words generally be valid marks only after a number of years of use and extensive advertisement resulting in “secondary meaning” as a trademark. 
o        Generic: common descriptive name of goods or services such as computer or lip balm. A generic term can never become a trademark
 
Copyrights
♥        Definition: a federally-granted right which protects an author’s particular expression of an idea. Does not protection to the actual idea being expressed. Rather, it protects the particular form of expression the author used in expressing his or her idea. Thus, anyone is free to express the same idea as long as the author’s particular form of expression is not copied. For example, two nearly identical photographs taken of the Eiffel Tower by two different people can each be individually copyrighted if they are independently created since each photograph is an expression of its respective author. Copyright protects the author from the unauthorized copying of the work, or a portion of the work, by another.
♥        What can be Copyrighted: Copyright is accorded to original works of authorship of literature, drama, music, sculpture, computer programs, sound recordings, film, photography, and works of fine art. Copyright gives the owner the exclusive right to reproduce, distribute, sell, perform, or publicly, display, the copyrighted work and to prepare derivative works therefrom.
 
C.     Cyber Space
 
ü       Virtual Works v. Volkswagen of America: (internet domain)
o        Facts: This was a dispute over an internet domain name. At the time appellant registered an internet domain name, two of its principals were aware that some internet users might think that the domain name was affiliated with appellees. They decided to u